UPDATE
from Eric:
Many thanks Trish for lending us a hand in our search. Documents should be sent to ericmartin2017 at hotmail dot com. We thank in advance our Canadian friends for their help. We too are fighting FATCA with all our energy with one simple im: to win!
I already saw the many responses on Brock. We are grateful, all this is very useful. We intend to milk this idiosyncrasy of our constitution to the fullest.
*******
I’ve received a request from our fellow expats-in-peril Association des Américains Accidentels to search for documents to help them in their litigation.
As of this week, we have hired a lawyer to get a legal opinion re: FATCA.
One of the angle we are pursuing is non reciprocity. Under the French Constitution (article 55) a treaty which is not reciprocal becomes null and void, as simple as that. We are presently looking for all documents written par the IRS/Treasury to US Senators or any other documents emanating from the US Treasury which point to the fact that the US has no intention of making FATCA reciprocal.
We are now in full gear and our aim is to make FATCA null in void in France and perhaps at the European level too. (it is another avenue we are exploring too)
In advance many many thanks,
Eric and Fabien
I have already sent them the letter from Mark Mazur (then Assistant Secretary of Treasury for Tax Policy) to Senator Rand Paul dated Oct 10, 2012.
Please help their legal challenge: Let’s Unite to Defeat FATCA
The text of the IGA is definitive. It promises to “try”. You can see that Obama “tried” when buried in his yearly budget proposals was a proposal to provide reciprocity. So, he fulfilled what was in the IGA by “trying”. He “tried” every year in the budget and every year his budget was not accepted and replaced with either a budget or nothing. He fulfilled what was written in the IGA.
The issue is that the IGA doesn’t promise reciprocity, only for administration to try to ask for reciprocity from Congress.
Had this been a treaty and not an IGA, it would still have only required for them to “try” to get reciprocity
The answer lies not in looking around the world for documents to prove a negative, the answer lies in the IGA words themselves.
This was confirmed by Mythster Stack’s statement to the EU parliament, when they asked about reciprocity and he simply read the IGA line by line.
Idiot governments used the reciprocity statement to create their own local #FakeNews stories to justify their stupid decision to implement FATCA upon themselves
http://thefranco-americanflophouse.blogspot.se/2013/05/public-hearing-on-fatca-at-european.html
hearing on youtube
Regarding reciprocity from USA, the model IGA states: “The Parties are committed to working with Partner Jurisdictions and the Organisation for Economic Cooperation and Development on adapting the terms of this Agreement and other agreements between the United States and Partner Jurisdictions to a common model for automatic exchange of information, including the development of reporting and due diligence standards for financial institutions.” There is no U.S. legislation to allow reciprocity.[133] The president’s budget for year 2014 included a proposal to allow the Treasury Secretary to collect information which could be used for FATCA reciprocity.[134] The proposal stated that its intent was to “would facilitate such intergovernmental cooperation by enabling the IRS to reciprocate in appropriate circumstances”, however the proposal did not request to allow the Secretary to have further transmittal authority. The president’s federal budget proposals of 2014, 2015 and 2016 did not list either costs or revenues for reciprocity implementation in any of the coming 10 years—thus assuming that this collection was either cost neutral or, more logically it would be interpreted as to not be budgeted in any of the coming 10 years.[135][136] The President’s FY2014 budget was not enacted, rather a different version was passed. The President’s FY2015 budget was defeated in the House of Representatives on a vote of 2-413. The President’s FY2016 budget was defeated in the Senate on a vote of 0-97.[137]
Reciprocity not authorized by Congress. FATCA as implemented by Congress included no mention of reciprocity.[138] FATCA as being implemented with the Executive Branch’s IGA implementation has made reciprocity promises to foreign governments.[139][140]
from wikipedia
This provides a semi-legal dead end which could be used to show that there are no further documents made available even to EU parliamentarians
https://www.ombudsman.europa.eu/cases/decision.faces/en/65927/html.bookmark
https://prod-cdn-static.gop.com/media/documents/DRAFT_12_FINAL%5B1%5D-ben_1468872234.pdf
Majority party calls for repeal of FATCA
Here’s something that may contain some useful material. See particularly pp. 5-6. http://www.financialsecrecyindex.com/PDF/USA.pdf
Here is the article which speaks of Mexico’s assertion that the United States had not lived up to its end of the reciprocity bargain. It’s in Spanish but may be useful to the French litigators.
http://www.eluniversal.com.mx/articulo/cartera/finanzas/2015/12/3/eu-incumple-entrega-de-informacion-sat
I have a comment about the survey on the American Accidentals webpage:
— First of all, it is addressed only to accidentals, not to “expats”: long term residents abroad, even those who have a foreign nationality are thus excluded if they do not fit the definition of “accidental”.
— The question about renouncing does not mention relinquishment (whether pre-2004 or post, registered at consulate or “self-service”)
— Travel to the USA question should contain an option “I used to travel (choice of frequencies) but haven’t been to the US in (x) years”
This might not help, but…
Fabien, you might consider trying to find a published statement made by your Government claiming that a key reason justifying your FATCA IGA legislation is the need France has in obtaining such reciprocal information from the United States. (In my opinion, this argument is completely bogus.)
Then you ask the Government for details on information that has been sent by US IRS to France before vs. after your FATCA IGA legislation, and the extent to which such FATCA-related information has actually been used in taxpayer fraud etc. cases.
In our ongoing Canadian lawsuit, Canada, so far, refuses to provide us with any details of the information flowing from U.S. IRS to Canada Revenue as part of the FATCA IGA legislation.
It sounds as though there may be some concrete information in the paper by Peter A. Cotorceanu referenced by Ms. Jeker. I am not able to gain access to the actual article. Perhaps someone else is able to do that.
https://www.world.tax/articles/the-us-and-its-reciprocal-igas-oh-really.php
The resistance to FATCA reciprocity comes from US lawmakers themselves. With regard to FATCA reciprocity, Financial Services Committee member Posey states:
“it is difficult to conceive of any circumstance that would justify imposing such an expensive and counterproductive domestic mandate.”
http://www.jimjatras.com/index.asp?idmenu=4&idsubmenu=130&title=the-us-surveillance-dragnet-extends-to-foreign-bank-data-too
“Q. As you leave the U.S. for the return to Brussels, do you believe there is a commitment on the part of the Republican-controlled U.S. Congress to back legislation that would implement the Organization for Economic Cooperation and Development’s common reporting standard?
A. “The answers we received on this is that the U.S. has the FATCA [Foreign Account Tax Compliance Agreement]. But for us in Europe, FATCA is not good enough. There is no reciprocity with FATCA. We need to receive data as well as send it. That is the whole point of the Common Reporting Standard.”
Q. Based on your meetings with the U.S. Department of Treasury and the U.S. Congress, are you confident that the U.S. is committed to implementing the OECD base erosion and profit shifting reforms?
A. “The discussion on this issue was difficult because again, we were told that the Treasury Department is still waiting for direction from the White House. We made it clear these issues are very important for Europe. And that we need to stand shoulder to shoulder with each other in order to ensure they are adopted in order to fight corporate tax evasion and money laundering.”
Q. The issue of beneficial ownership transparency is key to the European Parliament’s commitment to tackling corporate and individual tax evasion. Do you feel confident that this commitment is shared by the U.S. government and the U.S. Congress, based on your meetings?
A. “We received mixed information. We were told at the federal level that this is a state issue. And we were told in Delaware that they would change if there is federal legislation.
” Committee Chairman Langen
https://www.bna.com/eu-panama-papers-n57982085759/
These are NOT:
They are the resident/citizens of other nations who the USA is unjustly attempting to claim as “tax subjects” for the SOLE reason that their parents allowed for them to have been born in the United States.
Apart from proving that FATCA is not reciprocal and that the US NEVER intended for it to be, I think that you should look much closer to home, namely the EU document called ‘The Treaty on the Functioning of the European Union’. Therein, under ‘Part 2’ ‘Article 18’ you will find the following text, which is enshrined into EU law and has been violated by entering into and enforcing FATCA:
NON-DISCRIMINATION AND CITIZENSHIP OF THE UNION
Article 18
(ex Article 12 TEC)
Within the scope of application of the Treaties, and without prejudice to any special provisions
contained therein, any discrimination on grounds of nationality shall be prohibited.
It doesn’t get any clearer. By implementing and applying FATCA to any EU citizen, by an EU member state, that state is in violation of the above mentioned ‘Article 18’, as they discriminated against the individual concerned based solely on grounds of nationality. THIS IS FORBIDDEN UNDER EU LAW!
My suggestion is to bring this to the attention of your legal team, then confront the French Government with this, demanding an explanation as to why this statute (Article 18) was violated. Legal action should then be taken against the State for violation of this rule (Article 18) and this will undoubtedly lead to revoking FATCA. I would suggest that all concerned demand damages for having had their personal banking information sent to the US, while other French citizens did not have this happen to them. The only reason that this was done, was because of “nationality” or place of origin, both discriminatory criteria and both outlawed under EU law.
The official English version can be found here:
http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:12012E/TXT&from=EN
The official French version can be found here (Deuxieme Partie – Article 18):
http://eur-lex.europa.eu/legal-content/FR/TXT/PDF/?uri=CELEX:12012E/TXT&from=EN
To read this law, on the official EU site, in many different languages, go to the link below. Look for Part 2, Article 18:
http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A12012E%2FTXT
GOOD LUCK! You definitely have a case and you will win based on what is written in EU law.
@USCA
Was meant in spirit of fellowship.
@Muzzled
I have access to the paper you referenced by Peter Cotorceanu. Table 1 neatly summarizes the difference between data the US shares and what must be reported to the US under FATCA https://goo.gl/photos/zAE7FRDNeYoLBXrS8
All,
You might also want to take a look at this section of the IRS Internal Revenue Manual.
https://www.irs.gov/irm/part4/irm_04-060-001r-cont01.html#d0e1793
4.60.1.4.1 (09-19-2014)
United States-Initiated Automatic Exchanges of Information
At present, the automatic exchange information regularly provided by the United States to its foreign partners consists of bulk FDAP income data for taxpayers reporting residence in a foreign country. These data are drawn from information reported annually by United States withholding agents on Form 1042-S, Foreign Person’s U.S. Source Income Subject to Withholding.
The IRS Information Technology (IT) department segregates the Form 1042-S data by country, to be available for exchange with foreign partners as determined by the U.S. Competent Authority.
@Karen. For that one Yes, how could the U.S. reciprocate when U.S. banks are not required the same vetting and asking of the same questions as under an IGA.
@JC,
Not only is the data shared by the US incomplete due to the wide range of data not collected by US FIs, but it isn’t even a complete set of the information that US banks collect on foreign residents. It only includes US-source income reported on a 1042S. I believe some types of US-source interest income are not reported to the IRS. Plus, there will be income reported on 1099s to non-resident US citizens and green card holders, and it doesn’t look like that information is shared with their country of residence. The US is truly the biggest tax haven.
“At present, the automatic exchange information regularly provided by the United States to its foreign partners consists of bulk FDAP income data for taxpayers reporting residence in a foreign country. These data are drawn from information reported annually by United States withholding agents on Form 1042-S, Foreign Person’s U.S. Source Income Subject to Withholding.
The IRS Information Technology (IT) department segregates the Form 1042-S data by country, to be available for exchange with foreign partners as determined by the U.S. Competent Authority.”
It does not. The IRS’s records of Forms 1042-S are unrelated to withholding agents’ reports on Forms 1042-S. 1099 isn’t the only kind of form whose records are altered by IRS employees for the purpose of embezzlement.
“I believe some types of US-source interest income are not reported to the IRS.”
At least one financial institution issues Form 1099 when it’s supposed to issue Form 1042-S. (This is a different financial institution from one that did the opposite.) So it’s reported to the IRS but not on a form that the IRS would report to the country of residence even if IRS employees don’t alter it.
Karen: Thanks for rooting out that Cotorceanu paper!
https://www.linkedin.com/pulse/us-reciprocity-might-critics-have-eat-humble-pie-get-virginia
https://www.angloinfo.com/blogs/global/us-tax/us-reciprocity-might-critics-have-to-eat-humble-pie-and-get-fatca/
US “Reciprocity”: Might Critics Have to Eat Humble Pie and Get FAT(CA)?
Interesting find Tom Alciere, from one of our allies no less. Any chance she’s drank the Kool-Aid? I’ve been through the article, and don’t interpret this as though anything has changed. It remains firmly in the “I’ll believe it when I see it” category, and is far from any excuse to tax foreign economies as the %$#* USA is trying to do.