FATCA and the EU
April 2019
July 2018
06: EU Lawmakers Vote to Kick-Start FATCA Talks With United States
05: Independence Day attempt in European Parliament–the Empire lives well
July 2017
11: Refreshing: @SophieintVeld calls EU answer to plight of #AccidentalAmericans “bullshit”
September 2016
30: #FATCA Came Last to EU, but Mandatory Fingerprinting was First
August 2015
31: Parliamentary Question: Legality of intergovernmental agreements (IGAs) on FATCA
January 2015
10: EU Residents/Citizens: This is For You
September 2014
13: US seeks additional Customs Pre-Clearance locations in the EU
August 2013
24: European Parliament opposes exchanging bank data with the US
June 2013
May 2013
31: Public Hearing on FATCA at the European Parliament in Brussels
23: EU Parliament Hearing on FATCA May 28th
April 2013
04: MEP Sophia In’t Veld discusses FATCA in EU Parliament
March 2013
25: Question and Answer on FATCA in the European Parliament
February 2013
26: EU Tax Chief Urges U.S. Support for Transactions Levy @BloombergNews
April 2012
19: US bullies the EU into sharing passenger data
March 2012
10: Two prominent members of European Parliament raise concern over FATCA five agreement
February 2012
16: Are China, Russia, the EU and Switzerland poised to give in to FATCA?
January 2012
“Tax crimes: special committee calls for a European financial police force”
https://europeansting.com/2019/02/28/tax-crimes-special-committee-calls-for-a-european-financial-police-force/
https://www.europarl.europa.eu/cmsdata/161562/TAX3%20Final%20Report_A8-0170_2019_EN.pdf
The TAX3 report has been adopted by the European Parliament’s March Plenary Meeting.
The text as adopted can be downloaded at http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+TA+P8-TA-2019-0240+0+DOC+PDF+V0//EN
“…505 votes in favour, 63 against and 87 abstentions…”
http://www.europarl.europa.eu/news/en/press-room/20190321IPR32109/tax-crimes-meps-want-eu-financial-police-force-and-financial-intelligence-unit
Disappointingly, it seems the paragraphs relating to FATCA were added as an amendment at a late stage.
So, not part of a coherent effort to put pressure on the US over the reciprocity issue.
“FATCA : données fiscales transmises par erreur aux Etats-Unis par une banque française”
https://www.lemondedudroit.fr/pi-tic/300-protection-de-la-vie-privee/63397-fatca-donnees-fiscales-transmises-par-erreur-aux-etats-unis-par-une-banque-francaise-.html
Paywall
https://www.ebf.eu/wp-content/uploads/2019/02/EBF_035887-Practical-issues-in-complying-with-FATCA-request-for-relief.pdf
Brussels,
February 2019
EBF_
035887
SUBJECT:
Practical issues in complying with FATCA – request for relief
The European Banking Federation (EBF)
“……Since FATCA became effective in 2014, Financial Institutions have reached out to their
customers with US indi
cia and have encountered the following issues:
•
Some customers have not responded at all or the underlying bank account is
dormant or inactive. Obviously, no Tax Identification Number (TIN) is available
for these accounts as in many cases the indicia will
either be a false positive or
the indicia may be cured as the accountholder is not a US person.
•
Some customers have responded back that they cannot be considered as US
Tax Payers evoking a number of reasons, including the fact that they left the
US 50 year
s ago and never went back or they were only born in the US and
stayed for a few months
/ weeks only. This is the “accidental American”
situation which has previously been acknowledged by the Treasury and IRS.
These customers do not have a TIN and encounter
difficulties and long delays
in obtaining one only to renounce US citizenship subsequently.
As a consequence, European banks are therefore faced with a dilemma:
•
Either to continue to provide financial services, including basic banking services
(which is required by EU law)
, to European citizens that also have a US indicium
but have no US TIN; or
•
To stop doing so……..”…….
Hello all,
An update from the European front:
Dutch EU parliamentarian writes to Moscovici:
https://www.americanexpatfinance.com/news/item/149-accidental-americans-latest-dutch-eu-parliamentarian-writes-to-moscovici
And a recent tweet from Sophie in ‘t Veld:
https://twitter.com/sophieintveld/status/1114196760996536320?s=21
Hello,
Last week, the European Parliament’s PETI Committee held a follow-up public hearing on FATCA and its extraterritorial impact on EU citizens. If anyone interested has missed the hearing, it can be followed at the following link (from 10:33:00 through to 12:28:00)…
https://www.europarl.europa.eu/ep-live/en/committees/video?event=20191112-0900-COMMITTEE-PETI
Regards
https://americanexpatfinance.com/news/item/598-accidental-americans-take-us-state-dept-to-court
‘Accidental Americans’ take U.S. State Dept to court over ‘unconstitutional, illegal’ renunciation fee’
December 9, 2020
By Helen Burggraf
https://americanexpatfinance.com/tax/item/605-eu-councils-kreienbaum-to-irs-commissioner-rettig
‘EU Council’s Kreienbaum, to IRS Commissioner Rettig: We need to talk about FATCA’
December 17, 2020
By Helen Burggraf
https://time.com/5922972/accidental-americans-fatca/
By Vivienne Walt
Updated: December 23, 2020
‘Why ‘Accidental Americans’ Are Desperate to Give Up Their U.S. Citizenship’
“……Now, lawsuits filed on both sides of the Atlantic are seeking to redress the situation. On Tuesday organizations representing Americans in Europe filed complaints against Luxembourg and Belgium’s governments, demanding they immediately stop transferring European citizens’ personal banking information to the U.S.—something they say violates strict European and national privacy laws. The complaints are a prelude to formal lawsuits in the courts.”……”
These governments are really, desperately wishing this would just go away. But it’s not.
See answer below to a *question posed by MEP Sophie in’t Veld
https://www.europarl.europa.eu/doceo/document/E-9-2020-005165-ASW_EN.html
Parliamentary questions
21 January 2021
E-005165/2020(ASW)
Answer given by Mr Reynders
on behalf of the European Commission
Question reference: E-005165/2020
The authorities that are responsible for monitoring and enforcing the application of the General Data Protection Regulation(1) ( GDPR) are the national data protection authorities.
After these authorities came to the conclusion in 2018 that there had been no occasions where they ‘had to prohibit the processing and transfer of personal data to the US(2) under the FATCA(3) regime’(4) and following further exchanges with stakeholders, they are again looking into this issue at the level of the European Data Protection Board.
The Commission participates in the meetings of the Board and closely follows any developments on this file.
(1) https://eur-lex.europa.eu/eli/reg/2016/679/oj
(2) United States.
(3) United States Foreign Account Tax Compliance Act.
(4) See the letter of the article 29 Working Party of 8 February 2018, available at https://ec.europa.eu/newsroom/article29/item-detail.cfm?item_id=614217
Last updated: 22 January 2021
*Q. posed by MEP in’t Veld;
https://www.europarl.europa.eu/doceo/document/E-9-2020-005165_EN.html
Parliamentary questions
22 September 2020
E-005165/2020
Question for written answer E-005165/2020
to the Commission
Rule 138
Sophia in ‘t Veld (Renew)
Answer in writing
Subject: Data transfers to the US in the framework of FATCA and the GDPR
In order to comply with the US Foreign Account Tax Compliance Act (FATCA), implemented by bilateral intergovernmental agreements (IGAs) concluded between the EU Member States and the US, accidental Americans, who are EU citizens, have to transmit a social security number (SSN) to their bank under threat of closure of their bank account. In order to obtain this SSN, these people have to provide very sensitive data to the Federal Benefit Unit of US embassies, which are subsequently transferred to the US.
1. Does the Commission consider this transfer of information to be in line with the General Data Protection Regulation (GDPR)?
2. Does the Commission consider that this transfer of information is a direct consequence of the intergovernmental agreements concluded by the Member States to implement FATCA? What actions does the Commission undertake to protect the transfer of this information to the US?
3. Will the Commission open infringement procedures against the Member States?
Last updated: 9 October 2020
See #12
https://www.europarl.europa.eu/doceo/document/TA-9-2021-0022_EN.html
Further to the above.
https://americanexpatfinance.com/tax/item/632-eu-data-protection-board-to-revisit-fatca-data-protection-issues-justice-commissioner-reynders
EU Data Protection Board to revisit FATCA data protection issues: Justice Commissioner Reynders
January 25, 2021
By Helen Burggraf
https://www.europarl.europa.eu/doceo/document/E-9-2021-004907_EN.html
Parliamentary questions
PDF 39k WORD 9k
27 October 2021
E-004907/2021
Question for written answer E-004907/2021
to the Commission
Rule 138
Christophe Hansen (PPE)
Subject: Revision of international agreements involving the transfer of personal data to third countries in connection with the US Foreign Account Tax Compliance Act (FATCA)
FATCA provides for the automatic exchange of information between national tax authorities and the US tax authority. It often entails burdensome tax and banking obligations for US citizens living abroad, especially for ‘accidental Americans’.
The act, which stems from bilateral agreements concluded by Member States and whose application is the responsibility of national data protection authorities, has been repeatedly criticised, in particular because it does not comply with personal data protection provisions such as Regulation (EU) 2016/679 and Directive (EU) 2016/68.
In this connection:
1. What is the state of play of European-level discussions on the possible implications of data protection rules for existing agreements on the exchange of information for tax purposes?
2. Is the Commission in discussions with the US on possible amendments to FATCA?
3. Does the Commission envisage concluding a new agreement with the US that would repeal FATCA and be placed under the responsibility of the European Data Protection Board?
Original language of question: FR
Last updated: 8 November 2021
Yes I realize I’m splitting hairs here, but the claim that FATCA “often entails burdensome tax and banking obligations for US citizens living abroad” is both poorly written and not technically true. FATCA force no-one to file US tax returns.
@Ron,
FATCA did impose a new tax form to file together with enhancements to existing reporting, so I think it can be argued that it does indeed entail “burdensome tax obligations”. Of course it’s not clear that this is what is meant by that sentence, rather than the common incorrect assertion (as you point out) that it introduced a fundamentally new requirement to file taxes that didn’t exist before.
https://www.europarl.europa.eu/doceo/document/E-9-2021-004907-ASW_EN.html
Parliamentary questions
11 January 2022
E-004907/2021(ASW)
Answer given by Mr Gentiloni
on behalf of the European Commission
Question reference: E-004907/2021
The Commission has regular contacts with the United States (US) authorities on Foreign Account Tax Compliance Act (FATCA), notably in view of obtaining tangible improvements(1) in the situation of so-called ‘Accidental Americans’ concerned by the application of the bilateral agreements concluded by Member States.
However, as the EU is not a party to these agreements, the Commission is not entitled to discuss or negotiate amendments to them with the US.
Through the directive on Administrative Cooperation(2), the EU has implemented within its territory the internationally agreed Common Reporting Standard (CRS) for reporting of financial account information.
Any possible negotiation on behalf of the EU with the US for replacing the existing bilateral FATCA agreements would require not only a unanimous Council Decision mandating the Commission to engage in such negotiations, but also the preparedness of the US to adhere to CRS in place of FATCA.
As regards the monitoring and enforcement of EU data protection rules, these fall under the competence of national data protection authorities (DPAs) and courts.
While the European Data Protection Board (EDPB) confirmed in the past that there had been no occasions where the DPAs ‘had to prohibit the processing and transfer of personal data to the US under the FATCA regime’(3) , they continued to assess the impact of such agreements on data protection rules, including as part of ongoing national investigations.
This also includes advising and assisting the Member States in their assessment of international agreements concluded prior to the General Data Protection Regulation(4) to determine whether further alignment with EC law is needed(5).
The Commission is in contact with the Member States and the EDPB on this file.
(1) For instance, making easier obtaining a US Tax Identification Number from abroad and clarifying that individual accounts have not to be automatically closed by banks if that Number is missing.
(2) Council Directive 2011/16/EU of 15 February 2011, as amended by Council Directive 2014/107/EU of 9 December 2014 and, lastly, by Council Directive (EU) 2021/514 of 22 March 2021.
(3) Letter of the article 29 Working Party of 8 February 2018: https://ec.europa.eu/newsroom/article29/item-detail.cfm?item_id=614217
(4) https://eur-lex.europa.eu/eli/reg/2016/679/oj
(5) See the statement of the EDPB of 13 April 2021, available at https://edpb.europa.eu/our-work-tools/our-documents/other-guidance/statement-042021-international-agreements-including_en
Jan 24, 2022,09:35am EST|619 views
Does Strategic Forbearance Explain EU Deference To The Foreign Account Tax Compliance Act?
Tax Notes
Robert Goulder
https://www.forbes.com/sites/taxnotes/2022/01/24/does-strategic-forbearance-explain-eu-deference-to-the-foreign-account-tax-compliance-act/?sh=1794548aae60
Interesting find from an open public consultation. FATCA was given as an example of coercive non-EU legislation;
‘Detailed results of the open public consultation
on an EU anti-coercion instrument’
“Introduction
The open public consultation has been the central consultation activity in the impact
assessment process for this initiative.1 It was open to all stakeholders and citizens and
lasted for 12 weeks, starting on 23 March 2021 and closing on 15 June 2021. It was
available via EUSurvey, in all EU official languages. The online questionnaire contained 32
questions, with the possibility for open remarks for each question and for submitting a
position paper. ”
………..
‘Q4 Evidence of non-EU countries’ legislation either specifically designed to
impose coercive measures on other countries or that can be used for that.
Evidence of unwritten measures or practices that are used for coercion.’
…..”US Foreign Corrupt Practices Act (FCPA), Foreign Account Tax Compliance Act
(FATCA), CLOUD Act and Dodd Franck Act as coercive extra-territorial sanctions”
https://trade.ec.europa.eu/doclib/docs/2021/september/tradoc_159792.pdf