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If the February 5, 2014 FATCA Agreement signed by Canada with the U.S. is up for review as of December 31, 2016, then…

Posted on by Posted in Issues regarding US persons abroad 11 Comments

Comment a short while ago from Haydon Perryman:

Forgive me, I’m sure I should start a new thread but I don’t know how.

I had a look at the Canadian IGA.

FATCA Agreement – Canada, February 5, 2014 “Agreement Between the Government of the United States of America and the Government of Canada to Improve International Tax Compliance through Enhanced Exchange of Information under the Convention Between the United States of America and Canada with Respect to Taxes on Income and on Capital “

It is up for review as of December 31, 2016. P18.

It references Article 6 commitments.

The first item in Article 6 is US reciprocity*. (Which looks unlikely to say the least.)

 

* Article 6
Mutual Commitment to Continue to Enhance the Effectiveness of Information Exchange and Transparency

  1. Reciprocity. The Government of the United States acknowledges the need to achieve equivalent levels of reciprocal automatic information exchange with Canada. The Government of the United States is committed to further improve transparency and enhance the exchange relationship with Canada by pursuing the adoption of regulations and advocating and supporting relevant legislation to achieve such equivalent levels of reciprocal automatic information exchange.

 

Article 10
Term of Agreement

  1. This Agreement shall enter into force on the date of Canada’s written notification to the United States that Canada has completed its necessary internal procedures for entry into force of this Agreement.
  2. Either Party may terminate this Agreement by giving notice of termination in writing to the other Party. Such termination shall become effective on the first day of the month following the expiration of a period of 12 months after the date of the notice of termination.
  3. The Parties shall, prior to December 31, 2016, consult in good faith to amend this Agreement as necessary to reflect progress on the commitments set forth in Article 6 of this Agreement.

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From an earlier comment, Haydon Perryman:

IMO FATCA is here to stay. Five years ago we could have prevented it but we did not do that. We have to live in the world as it as, not as it should be. We can’t prevent FATCA. That ship has sailed. I know many of you disagree. We can prevent the CRS but only if we stop focussing on the past (FATCA).

Maybe we can’t stop the CRS either but we can make sure America signs up by embarrassing them or by treating the IGAs as breached given the lack of reciprocity.

Presently the U.S. has no reciprocity on FATCA and is the only OECD member of the entire 34 not to have committed or signed up to the CRS.

This means that the U.S. is the biggest secrecy jurisdiction in the world and remains so, whilst weakening all the others.

This means the hot money will go to the US.

Given that there is no way they’ll get even the $8.9B they say they estimated, the only “benefit” of FATCA is that money flows to the US.

Meanwhile we argue about spilt milk whilst allowing the US not to sign up to the CRS.

Also, nothing has changed. For financial secrecy, in general put you money in the US. For secrecy of beneficial ownership go to the Caymen Islands. For corporate secrecy keep ownership at less than 25% in an Inter Governmental Agreement country.

It’s shocking, world wide misery on a worldwide scale with nothing positive achieved.

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My uneducated / uninformed — or just plain old based-on-common sense question (and we may have previously discussed?):

We are raising funds for litigation against the Canadian government for its signing and implementation of the FATCA IGA in Canada.  Would it not be prudent for the Government of Canada to put some teeth into their review with the US (to take as of December 31, 2016) and further negotiation with the US to MAKE SURE no information on Canadian citizens or permanent residents is handed over to the US without reciprocity from the US — and not until this review has taken place?  And, the same with any other country?

 

11 thoughts on “If the February 5, 2014 FATCA Agreement signed by Canada with the U.S. is up for review as of December 31, 2016, then…”

  1. I have thought about this a bit. My conclusions are not good. Why should America care if the IGA get changed because they won’t fork over any data? They will have what they want then and it will be great for them for quite a few years.

  2. I’m glad to be reminded that there is something in black and white in the agreement that speaks of a specific date for a review, Dec. 31, 2016. This is something concrete we can all take to our MPs and prospective MPs (to whom we are all going to be speaking in the coming months, right?!) and ask them point blank, will you vote to quash this agreement when it comes up for review?

    This agreement can *never* on God’s green earth be “reciprocal” because Canada has no interest in receiving the financial information of its “citizens” living in the United States, only its “residents”.

  3. It’s a charade and I agree, each of us should be telling our elected representatives that no Canadian should have something as important as their private financial information handed over to the US under such a lopsided agreement.

  4. More on US faux reciprocity promises:
    http://www.financialtransparency.org/2015/01/26/loophole-usa-the-vortex-shaped-hole-in-global-financial-transparency/

    President Obama recently gave his State of the Union address, with an eye to his legacy. Here’s something that may seriously tarnish it, for a failure to take this seriously will make wealthy people wealthier and poorer people poorer, and will undermine crime-fighting, all around the world.

    USA: we’ll pretend to join in

    The U.S. position has basically been to say ‘we are doing our home-grown FATCA project, and it’s technically similar to the OECD’s CRS, so we don’t need to join the CRS.’ Which, at first glance, looks like a position that could be defensible, depending on the detail.

    A crucial part of the detail, however – and this is where the vortex starts to come in – hangs on the all-important question of reciprocity. The United States is extremely keen for other countries to pony up information about U.S. taxpayers hiding their cash offshore and overseas – as it should. But when it comes to reciprocity, or providing information in the other direction, things change.

    The U.S. (again, on the surface) has said that is committed to sharing FATCA-related information under so-called Intergovernmental Agreements (IGAs,) which are bilateral deals that stipulate how and in what circumstances the relevant information may be handed over to foreign governments. (There are three basic models: 1A, 1B and 2: only the Model 1A agreements are reciprocal; the Treasury’s U.S. public list of IGAs is here, with the gory details explaining the different modelshere.)
    …
    So much for the requirements for financial institutions in the U.S. to fish the information out of its customers. Now look at how the (non-)information they do obtain are to be shared out with the U.S.’ foreign partners. Article 6 from one of the U.S. Model IGAs (Intergovernmental Agreements) says:

    “Reciprocity. The Government of the United States acknowledges the need to achieve equivalent levels of reciprocal automatic information exchange with [FATCA Partner].”

    The U.S. government acknowledges the need to be reciprocal. That’s nice. But will it be?

    Turn to Article 2, and you get a picture of what the U.S. may obtain from other countries, versus what other countries may obtain from the U.S. Here’s a summary of some of the differences, from TJN’s Andres Knobel. Just look at how thin the US banks’ reporting obligations are about Germans, compared to German banks’ reporting obligations about US persons.
    …

  5. Common Reporting Standard (CRS)

    Should not any COMMON Reporting Standard have the same commonalities, i.e. like taxation based on residence?

    Shouldn’t anything named *CRS* have a level playing ground, residence-based taxation?

    Shouldn’t *COMMON Reporting Standard* have something to do with common sense?

  8. Thanks, Haydon Perryman, for your Supporting Documents, Terms and Definitions and The key differences between FATCA and the CRS, an excellent resource for those who read here.

    A real “Up is Down and Black is White” — the great US hypocrisy.

  9. @Calgary411
    It is great to see Nicholas Shaxson speak out about this. He is a highly respected voice against tax havens. If he says that FATCA is a wolf in sheep’s clothing, people will believe him.
    @Haydon Perryman
    Thank you for posting. It is just so odd to see the governments playing happy families through all of this. It’s like the foreign leaders think that they can’t even talk about what this is really about. Why? It is also disconcerting to see the U.S. acting with no apparent regard for the effects of its policy outside its borders.

  10. @Publius IMO the problem is caused by the fact that politicians can form laws and throw the implementation of them “over the fence” to, say, the IRS to implement.

    I very much doubt the IRS wanted FATCA.

    The only currency that counts is votes, when politicians suffer vote losses due to bad law, then laws will improve. Strangely, we do not judge politicians by the laws they generate.

  11. @Haydon Perryman

    Aren’t politicians also called “lawmakers”? If any other maker of anything did as crappy a job as US lawmakers do with their laws, they’d be out of business.

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