H.R. 2299 “To prevent the Secretary of the Treasury from expanding United States bank reporting requirements with respect to interest on deposits paid to nonresident aliens.”
In the last Congressional Session, Representative Bill Posey proposed 3 amendments to H.R. 4078, “The Red Tape Reduction Act”, which was passed by the House, but died in the Senate.
Posey’s third Amendment, was of interest to us. It specifically was calling for a withdrawal of IRS bulletin 20-2012 . This is an important reciprocity tool that Treasury is promising the world’s governments in their FATCA IGAs as a first step along the way to imposing a full blown domestic equivalent of FATCA (which we call DATCA).
…… to stop the IRS from implementing new misguided regulations expected to lead to billions of dollars of capital flight from U.S. banks to foreign institutions. Despite strong bipartisan requests in both chambers of Congress, the Treasury Department has refused to withdraw the rule, or at a minimum, conduct an economic impact analysis on how the regulation would affect the banks and the economy.
Representative Bill Posey is no ‘Johnny come lately’ to the fight against the FATCAnatics in Treasury. Back in March of 2011, he wrote the White House a letter, signed by the entire Florida delegation, demanding that the proposed IRS regulations requiring reporting of Non Resident Alien Deposit Interest be withdrawn.
It is good to see, that with this new bill, Rep Posey can be just as persistent on the right side of the equation as the misguided Senator Jack Reed is on the left, who thinks emigrants (deemed ‘covered Expats’) shouldn’t be able to return once they renounce or relinquish citizenship.
I think this is a bill we can and should support. I still feel the reciprocity issue is the Achilles heel of FATCA. If this reciprocity tool is totally removed, the governments of the world can no long hide behind the charade that they are signing IGAs to get something back in return.
Of course, I could be wrong, and probably am. That said, I thought I would take this opportunity to move forward and update the history of DATCA events with this post. I have been tracking it here, here, here, here, here, here and here since it first became obvious to me what Treasury was doing .
Recap the DATCA story…. (as much for me as for anyone who happens to bother reading this.) I continue to add to it over time. I have been trying to keep all articles relevant to the FATCA reciprocal information sharing subject as I found them. I coined the term DATCA to reference it, as it is the domestic version of FATCA.
Let’s review. This is somewhat an arbitrary start date for a timeline. If anyone sees any story or discussion earlier than this, that I may have missed, which adds significantly to the DATCA narrative, please let me know.
February 22, 2011 – IRS Bulletin: 2011-8 REG-146097-09 was issued: It was a Notice of Proposed Rulemaking; Notice of Public Hearing; and Withdrawal of Previously Proposed Rule making Guidance on Reporting Interest Paid to Nonresident Aliens
March 11, 2011 – A bi partisan letter from the entire Florida delegation, comprised of Reps and Dems was written to Obama to complain about regulations that the IRS was unilaterally imposing on US banks as part of the FATCA rollout effort. However, they did not identify or maybe even understand that one was part of the other.
Another link for this letter.
July 15, 2011 - H.R. 2568 (112th Congress): To prevent the Secretary of the Treasury from expanding United States bank reporting requirements with respect to interest on deposits paid to nonresident aliens. (Thanks to Mark Twain for calling this one to my attention in the comments below.)
September 27, 2011 – The first story that begin to register for me that there was opposition to actions that the IRS was taking. It was in an Accounting Today story six months later: Congressman Tells IRS to Back off on Bank Disclosure
The chairman of the House Ways and Means Oversight Subcommittee demanded Tuesday that the Internal Revenue Service suspend a proposed regulation that would require banks to disclose the amount of interest paid to nonresident aliens.Rep. Charles Boustany, R-La., wrote a letter to Treasury Secretary Timothy Geithner and IRS Commissioner Doug Shulman saying the proposed regulation could potentially drive foreign investment out of the U.S. economy and harm individuals and small businesses by reducing access to capital. He called on the Treasury to provide a cost-benefit analysis detailing the administrative burdens of the regulation before it is approved by the IRS.This is not the first time the IRS has attempted to issue this regulation,” said Boustany. “At the close of the Clinton Administration, the IRS tried to put in place similar reporting requirements. However, after members of Congress, the Federal Deposit Insurance Corporation, and the U.S. Small Business Administration raised strong concerns, the proposal was eventually withdrawn. It is disappointing to see the IRS once again try to impose unnecessary regulations and costs on U.S. banks.
This story also got a mention out of Rosa Eckstein Schechter of Florida here: Congressional Challenge to FATCA Brewing Out of Louisiana Congressman’s Letter to Treasury Secretary Geithner
October 27, 2011 – There was a Hearing held by the subcommittee of Financial Institutions of the Committee of Financial Services about “PROPOSED REGULATIONS TO REQUIRE REPORTING OF NONRESIDENT ALIEN DEPOSIT INTEREST INCOME”
Hat tip to Badger who dug this out here.
January 24, 2012 – Remarks by Emily S. McMahon, Treasuries Acting Assistant Secretary for Tax Policy at New York State Bar Association Tax Section Annual Meeting outlining FATCA reciprocity plans…
…”we see no principled basis on which to require that financial institutions based in other countries collect and provide us with information on U.S. taxpayers, if we take the position that our own institutions should be exempt from similar requirements. To the contrary, we believe that it will be critical to the success of our efforts to implement FATCA that we are able to reciprocate….”
February 2, of 2012 – There was a US Treasury Department release of a JOINT STATEMENT FROM THE UNITED STATES, FRANCE, GERMANY, ITALY, SPAIN AND THE UNITED KINGDOM REGARDING AN INTERGOVERNMENTAL APPROACH (IGA)TO IMPROVING INTERNATIONAL TAX COMPLIANCE AND IMPLEMENTING FATCAGeneral Consideration 5 laid out a vision of reciprocity (A DATCA?) that said:
In this regard the United States is willing to reciprocate in collecting and exchanging on an automatic basis information on accounts held in US financial institutions by residents of France, Germany, Italy, Spain and the United Kingdom. The approach under discussion, therefore, would enhance compliance and facilitate enforcement to the benefit of all parties.
February 8th, 2012 - This was my first use of the term DATCA related to the IR-2012-15: Treasury, IRS Issue Proposed Regulations for FATCA Implementation. It was here I begin to identify that some form of a DATCA was going to be a part of FATCA implementation.
April 17, 2012 - It was was reported in Accounting Today that IRS Issues FATCA Guidance on Reporting Interest Paid to Nonresident Aliens
The IRS noted that the regulations would facilitate intergovernmental cooperation on FATCA implementation by better enabling the agency, in appropriate circumstances, to reciprocate by exchanging information with foreign governments for tax administration purposes
May 11, 2012 – Another story surfaced on Accounting Today basically expressing dissatisfaction with what the IRS was doing, and asking again for information.Congress Probes IRS FATCA Interest Regulations
The chairman of an influential congressional subcommittee is demanding information from the Treasury Department on a recent Internal Revenue Service regulation requiring banks to disclose the interest they pay to nonresident aliensCongressman Charles Boustany Jr., R-La., who chairs the House Ways and Means Oversight Subcommittee, has written a letter to Treasury Secretary Tim Geithner asking for more information about the regulation.However, Boustany finds the regulations troubling.
He had written to Geithner last September after the IRS issued a Notice of Proposed Rulemaking and received information in December. However, he said in his new letter that while Geithner’s initial response was helpful, it did not provide all of the information requested.“This regulation could drive foreign investment out of our economy and burden banks with unnecessary reporting requirements, in turn hurting individuals and small businesses,” Boustany said.
In a new letter that he sent Friday, Boustany called on the Treasury Department to provide correspondence and other documents relating to the formation of the opinion that the proposed regulation is not a “significant regulatory action,” as well as other information requested in Boustany’s earlier letter.
May 14, 2012 - The IRS went ahead with their final reg, IRS bulletin 2012-20 which was the first step in meeting the “Joint Statement” agreement of February 2, 2012 and ignoring Boustany’s letter above just days before. It officially created the reciprocal provisions (DATCA lite) in the Model Agreement 1 which was to follow.
26 July 2012 – The US Treasury Department issued the first FATCA model 1 Inter-government reciprocal agreement, (IGA) that contained article 6, promising to provide reciprocity (as in IRS bulletin 2012-20) to countries that signed the agreement. The Actual language said:
United States is committed to further improve transparency and enhance the exchange relationship with[FATCA Partner] by pursuing the adoption of regulations and advocating and supporting relevant legislation to achieve such equivalent levels of reciprocal automatic exchange.
July 26th of 2012 - The Posey Legislation and amendment 3, which was passed by the House but went nowhere in the Senate. In this legislation they tried to reign the IRS in.
Posey’s third Amendment, which is based on bipartisan, bicameral legislation he introduced with Congressman Gregory Meeks (D-NY) to stop the IRS from implementing new misguided regulations expected to lead to billions of dollars of capital flight from U.S. banks to foreign institutions. Despite strong bipartisan requests in both chambers of Congress, the Treasury Department has refused to withdraw the rule, or at a minimum, conduct an economic impact analysis on how the regulation would affect the banks and the economy.
According to Florida’s office of financial regulation, the regulation could lead to tens of billions of dollars being withdrawn from Florida banks and moved to overseas accounts. Posey said his Amendment would delay the IRS rule until unemployment drops to 6 percent. The House approved this Amendment with a bipartisan vote of 251-165.
Obviously at this point it was clear that FATCAnatics were marching onward with their FATCA IGA reciprocal mission and a larger global GATCA in mind. They seem determined to ignore Congress as they went! Their intention or interest mattered not!
Oct 17, 2012 - There was the letter by Congressman Reichart imploring Shulman to answer him about what they were up to. No response that I know of.
January 28, 2013 - The final FATCA fatwa regs are released effective January 28th, and countries are being pressured to sign FATCA IGAs with some measure of reciprocity rather than be subjected to the onerous FATCA Portal of Mordor as released in the 544 pages of regulations.
April 14, 2013 - Obama’s budget released and calls for FATCA reciprocity This is the domestic full blown DATCA they have desired to be imposed on the USFIs. See page 202. It was posted on IBS with additional comments Here Comes DATCA.
April 19, 2013 - Banker Groups Sue Treasury, IRS Over Account Reporting Rule Story from Bloomberg about the attempt to stop DATCA lite without a mention of FATCA. We blogged about what this all means here.
May 23, 2013 – There was an EU Parliament public hearing on FATCA that featured presentation and answers to questions by Treasuries Robert Stack. His answers on FATCA reciprocity were videoed and loaded on You tube here, and his transcript is loaded here. In his answers, he has explained that reciprocity (DATCA) is in the Obama budget, and what that would mean for Delaware Corporate beneficial ownership transparency.
Jun 06, 2013 - Representative Bill Posey introduces legislation H.R. 2299: To prevent the Secretary of the Treasury from expanding United States bank reporting requirements with respect to interest on deposits paid to nonresident aliens
July 1, 2013 – (Update) Representative Bill Posey writes a letter to Secretary Jack Lew calling for a moratorium on FATCA. Here is a download link to the letter, and it was announced and discussed here on ISB
July 19th, 2013 (Update July 28th) Janet Novak at Forbes reports here that the IRS has been quietly filing John Doe requests to USFIs on behalf of Norway which recently signed an FATCA IGA. So, is this the quid pro quo for reciprocity demands? Is this DATCA by another means. See my comment on the story. Further conversations with Janet, confirm, that the DOJ has stated this is the first time they have EVER done this?
January 13, 2014 US DOJ: Court Rejects Banking Associations’ Challenge to Regulations Addressing Offshore Tax Avoidance. Added this comment here. So, DATCA lite looks to be a reality. However, note that reporting on this says….
“The IRS is starting to require the information to comply with international treaties requiring foreign banks to provide similar information about overseas accounts of U.S. taxpayers.”
But of course, all readers at ISB know these are NOT a treaty. They are an Executive or Competent Authority agreement, and if you don’t understand the difference and dubious legal basis for these agreements, the article by Allison Christians is must reading…
Feb 5th, 2014 Reuters reports that the Banking association has appealed the dismissal of the case above. So the fight against ‘DATCA lite’ lives on.
…and that is the End of the of the brief history of DATCA as I have watched develop and recorded it. It is interesting to look back and remind myself how long Treasury has been marching to their own drummer and have been ignoring Congress.
No Way was a domestic reciprocal FATCA (DATCA) ever part of any intention of Congress when this was passed it, assuming they even knew it was in the Hire Act in the first place.
There is nothing in the 2009 Press Release that heralded its coming. If reciprocity had been part of the intention, why wouldn’t they have just created the authority for FATCA IGAs when they wrote FATCA in the first place?
They didn’t provide for it, comment on it or write it into the legislation, because they were only focused offshore and few knew that the Treasury FATCAnatics were about to hijack the mission. I do speculate that a DATCA certainly must have been part of a secret goal of some of the sponsors, as America is the BIGGEST tax haven in the world and the resting place for trillions of dollars undeclared around the world. They wanted to stop that.
Switzerland is a piker by contrast.
This comment by @Badger on another thread is worth repeating:
The IRS has not charged any actual bankster executives when illicit money owned by foreign non-resident depositors is discovered hidden in US bank accounts on a large scale, and it appears that none of these investigations even went to trial. The banks settled, but still made a profit.
See: …”As the U.S. Internal Revenue Service crusades against Americans using offshore banks to hide money, these tax experts say, the United States itself serves as a massive haven for international tax cheats.”
“We’re the biggest tax haven in the world,” says Robert Goulder, editor-in-chief of U.S.-based Tax Notes International. “People joke about the Cayman Islands. The biggest haven is an island, all right. It’s either Manhattan or Great Britain.”
Jack Blum, a former U.S. Senate investigator and an authority on offshore tax shelters, says U.S. bankers “sell tax evasion to citizens of Central America, the Caribbean, all over Latin America.” The U.S. government hasn’t put a stop to it, Blum says, because bankers and politicians don’t want to stop the flow of foreign cash into the United States.”
So, therein will be the future battle lines be drawn as they progress towards a full FATCA implementation globally. Full Reciprocity is not there yet, but an IRS spokesman said recently, reciprocity is a work in progress, and of course Robert Stack made those public reciprocity statements at the EU Parliament FATCA Hearing. The last blog entry on that hearing is here. Make no mistake about it, that is where the ideologues of Treasury are heading. And frankly, if America is not going to be so hypocritical in its approach to financial transparency, it has to begin at home.
Will they get there? Will they actually pass a DATCA? It all depends if Congress has a spine and resists, or if gridlock effectively stops the Obama! However, I think we underestimate how much our banking system has relied on illicit and ‘dark money’ for liquidity. Are we willing to give it up in an ideological pursuit of Global financial transparency, or GATCA is you wish? What will be the impacts on the US homeland for capital flight if we do? Will your loan not be approved because reserve levels of your local bank are too low, and the DATCA money is no longer resting in your bank? How pure and idealistic do we want to be in our global efforts at fighting tax avoidance and evasion?
Just an aside: If you haven’t read that IRS bulletin 2012-20 that I have linked here, you really should.
It is as much a mission statement of the FATCAnatics as those the NeoCons issued with their Project for a New American Century years ago that laid out their vision prior to our war of preemption on Iraq.
The FATCAnatics of the left are the ideological mirror image of the NeoCons of the Right. The War is just different, but mission the same. Pre-emption in pursuit of ideological certainty. Unintended consequences of unknown unknowns, be damned!
Read this letter. Look at those signatures and compare it to the officials in the first administration of W, and then tell me why you were surprised at our Iraqi invasion!
To me, the FATCAnatics have laid out their mission just as forthrightly as the NeoCons did. There should be no surprises about where they are heading. Yet the media chooses not to read or report on it. I don’t know why they ignore it, but it is what it is I guess!
The Mission Marches on…Others are beginning to wake up to what is happening, but not in the Mainstream media yet…..and now you are up to date for the moment, if you could bring yourself to read this far!