FATCA and the EU
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
Fyi…
Question from Luke Ming Flanagan to the Commission for a written answer
Subject: US Foreign Account Tax Compliance Act (FATCA)
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+WQ+E-2018-004055+0+DOC+XML+V0//EN&language=EN
Mishcon de Reya have found a plaintiff and have filed a complaint re CRS and the GDPR.
https://www.ft.com/content/679e65a8-94a9-11e8-b67b-b8205561c3fe
@plaxy: They’ve got a post up on Mondaq with more details
http://www.mondaq.com/uk/x/726390/Data+Protection+Privacy/Legal+Challenge+To+Common+Reporting+Standard+CRS+And+Beneficial+Ownership+BO+Registers (archived https://archive.is/GXol6)
Eric – yes – they’ve been seeking plaintiffs for a while (posted somewhere upthread). Now someone has stepped forward.
Fingers crossed.
Found it:
http://isaacbrocksociety.ca/fatca-and-the-eu/comment-page-9/#comment-8134823
It appears Sophie in’t Veld has more balls than 98.7% of american, canadian, and european “men.”
Balls aren’t necessary for an MEP to raise issues in the EU Parliament. No risk is involved. The Parliament, having little power to act, is free to speak.
Ms in’t Veld has persistence and competence and determination, and knows how to deploy them effectively. More relevant qualities than testicles, in the europarl context.
‘ German Greens MEP Sven Giegold says that lack of effective action by the US is “damaging the global fight against financial and tax crimes.” ’
https://www.theparliamentmagazine.eu/articles/news/sven-giegold-global-tax-cooperation-remains-crucial
The study referred to is from 2016; see https://www.greens-efa.eu/en/article/the-role-of-the-united-states-as-a-tax-haven/
Hello all,
Answer given by Vice-President Dombrovskis on behalf of the European Commission concerning the question raised by Luke Ming Flanagan
Subject: US Foreign Account Tax Compliance Act (FATCA)
http://www.europarl.europa.eu/sides/getAllAnswers.do?reference=E-2018-004055&language=EN
No new news here, just the usual ‘Member States competence’ excuse…
Doesn’t seem to me to be an “excuse”. It’s a fact that the Commission can’t do anything about Member States’ bilateral IGAs.
The wording of the reply suggests the Commission has been unable to so much as get the Member States to provide information on how much information they’re getting back from America. (Information which would be highly relevant not only to the assessment requested by the anti-FATCA resolution adopted by Parliament, but also to the “non-reciprocal” complaint which the Commission has raised with the OECD.
The countries are not playing ball. As expected.
@plaxy
“Doesn’t seem to me to be an ‘excuse’.”
Alright, I will replace “excuse” with “choral refrain” …
We are told repeatedly that taxation always falls within the competence of the Member States and not the EU Institutions. However, the EU Commission had no qualms meddling in Irish tax issues with respect to Apple in 2016 (perhaps because it was deemed state aid?). In any case, the EU Commission can put pressure on Member States to do something about FATCA. Obviously, it is neither their priority nor in their best interest.
“the EU Commission had no qualms meddling in Irish tax issues with respect to Apple in 2016 (perhaps because it was deemed state aid?)”
Yes, as I recall it was about state aid. Tax is indeed a MS competency, though I don’t think there’s any doubt the Commission would like to make some changes to that situation.
“the EU Commission can put pressure on Member States to do something about FATCA.”
How?
“Obviously, it is neither their priority nor in their best interest.”
It’s my impression that the Commission would like to use the reciprocity issue as a lever in its talks with the US over the effects of the US tax reform bill; but I agree the Commission has no wish to get rid of FATCA. I definitely think the Commission would like to negotiate an EU-wide IGA to replace the bilateral IGAs. I don’t for a minute think that USCs would like it any better than the status quo.
@plaxy
“How?”
Take legal action because of discrimination? Or breach of data privacy? If there is the determination to right a wrong, the Commission would have taken the moral high ground and done something about it. But as I said yesterday, it is obviously neither their priority nor in their best interest.
“I don’t for a minute think that USCs would like it any better than the status quo.”
I cannot disagree. Unless the EU Commission somehow manages to renegotiate FATCA with an exclusion for US-born EU citizens or a cost-free, penalty-free renunciation mechanism, there would be no point to revisit the matter. Reciprocity was dubious from the start, and the Yankees could care less about honouring this.
“Take legal action because of discrimination? Or breach of data privacy? ”
Indeed. Because the IGAs are national agreements, the victim of the discrimination / privacy breach has to bring the case, at national level. The Commission can’t do it.
“If there is the determination to right a wrong, the Commission would have taken the moral high ground and done something about it.”
You think? I think the MHG is generally hauled out for political ends, not for the righting of wrongs. It’s not the Commission’s rôle to decide if there’s a wrong to be righted, though the Commission does have a duty to respond if there is evidence that an EU law (such as PAD) is being broken. If eventually a case gets as far as the ECJ, it’ll be the court that rules on the question of whether national law is resulting in a wrong such as discrimination or breach of privacy rights.
“Reciprocity was dubious from the start, and the Yankees could care less about honouring this.”
Indeed, to both points.
@plaxy
“It’s not the Commission’s rôle to decide if there’s a wrong to be righted, though the Commission does have a duty to respond if there is evidence that an EU law (such as PAD) is being broken.”
But the Commission did take action against Apple in the Irish tax case in 2016 to right a wrong, no? I cannot see what is stopping them to take whatever action necessary to right several wrongs resulting from FATCA.
This is all wishful thinking on my part. At the end of the day, as an average European citizen, I have to put up with this crap unless 2.350$ emerges from somewhere…
As I understand it, the Commission launched an investigation into whether Ireland’s lures to Apple amounted to illegal state aid, concluded that it did, and ordered Ireland to recover the aid through taxation. Ireland refused, and the EU referred the case to the ECJ.
In the case of FATCA, the Commission has taken the view (correctly, as far as I can see) that the IGAs don’t breach EU laws. That’s the difference, it seems to me. I don’t think it’s surprising: GDPR specifically allows derogation in tax matters, and PAD only requires access to a basic bank account. The laws are designed not to get in the way of policy goals, such as AEOI.
I’m optimistic that the French case may succeed. If not, there’s also a CRS case in the works. It seems to me (amateur) the situation is unstable, and may not last as it is. Many rich people don’t like it.
Another thought: repeal of FATCA is also a possibility, after the current bout of American electioneering is over.
The Americans have managed to heap up FATCA, the retroactive forced-deemed-repatriation tax, and GILTI on the heads of the US dual citizens, creating a triple whammy of incentives for the most successful (the ones worth taxing) to renounce US citizenship.
Something might get done, in the next session, to address this. Or not.
Alternatively, if the US Congress sets up an (optional) alternative tax regime for non-US-resident USCs, as is currently apparently being considered, that could be a real boon for some EU USCs, as it would be logical to stop treating accounts in the residence jurisdiction as reportable.
Just have to wait and see.
I said:
From a twitter exchange yesterday (https://mobile.twitter.com/SolomonYue/status/1045596500712148992), it sounds as if this will not be the case. If the bill under discussion were to be enacted, the IRS might have no interest in tracking foreign assets of USCs registered as officially permitted not to file US tax returns, but there is no suggestion that FFIs would be required or allowed to treat the accounts of registered non-filers as non-reportable.
So – essentially, unless the Americans repeal FATCA altogether, or one of the European legal cases gets to the ECJ and gets a successful ruling on the birthplace discrimination issue, I can’t see any solution other than the CLN. I may be wrong, and I hope I am.
Hello all,
Answer given by Ms Jourová on behalf of the European Commission concerning the question raised by Alex Mayer
Subject: Accidental Americans
http://www.europarl.europa.eu/sides/getAllAnswers.do?reference=E-2018-003785&language=EN
“The key benefit of the Common Reporting Standard lies in its reciprocity. To achieve equivalent levels of reciprocal information exchange with the EU Member States, the United States have made a political commitment to implement it, as expressed in the pre-amble of FATCA intergovernmental agreements.”
So they have.
The MEP didn’t ask any question to which this statement could possibly be the answer.
I do hope the add-on is there for a purpose – e.g. to float the thought that if the US isn’t keeping its word with regard to reciprocity, the Member States should each withdraw from their Agreement as expressly provided for in the Model.