Category Archives: Issues regarding US persons abroad

The following was reported yesterday in BankNewsCredit

Asian regulators express concern regarding overseas application of Dodd-Frank rules

Published on August 30, 2012 by Pat Dulnier

Asian regulators have requested that U.S. regulatory authorities review proposed derivatives rules to ensure that the new requirements do not conflict with those rules established by sovereign nations…

…“The impact from any resulting (likely significant) increase in compliance costs and the potential reduction in liquidity of [over-the-counter] derivatives markets should not be underestimated,” the groups said in the letter, according to Reuters.

The definition of a “U.S. person” by the Commodity Futures Trading Commission, which applies to any person or entity that will have an effect on American commerce, has elicited criticism and caused some unease in foreign markets that have trading relationships with the U.S.

Read more: BankNewsCredit

You have a computer with Microsoft Windows on it?  You then  are a US Person and banks may close your checking account or refuse to refinance your mortgage, since the act of purchasing Windows has an effect on American commerce.  Maybe this sounds extreme, but America is not known for acting logically these days.

(Update: the editor apologizes for incorrectly posting a rough draft of this post; here is the corrected draft.  Petros)

 Guest post by Anthony E. Parent, Esq., Tax Attorney, founder of IRSmedic.com

Years ago, when I was a Finance major, during our studies we were subtly encouraged to worship the Federal Reserve. Then in law school, were we subtly encouraged to worship the genius behind Marbury v. Madison, 5 U.S. 137 (1803), the seminal case that establish judicial review for constitution propriety.  And later, as a tax law student, we were encouraged to be in awe of the vast public policy considerations placed over the ever expanding 16^th Amendment, the essential prerequisite to the the US Federal income tax.

But then time goes on. The theories and idealism of school fades away as the real world intrudes more and more each day into one’s affairs in private law practice.  Things get to a point and idealism so vanquished, one will properly tell clients the uncomfortable truth: “the last place to expect justice is in a court of law.”

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This might be old news, but thought I would share my concerns and recent information to fellow Canadian/US citizens.

My position as a Canadian/US citizen is that these Financial Institutions in Canada will have to start putting pen to paper on this US legislation less than 5 months away, and not a single bite of information has been forthcoming from my Bank verbally or otherwise other than the generic drips of information one can readily find on the internet.

if I am to consider signing away my privacy rights then I should be afforded the opportunity to consult a Lawyer to look over the legislation to ascertain what exact information i am allowing the IRS to digest from my accounts.

My fear is that the banks, having at least 2 years to think about this and devise a plan of attack, will one day send me paperwork which has to be completed in a timely manner or else I will be labelled as a recalitraint account holder.

After many calls and emails regarding any updates regarding what my Financial Institution was going to do about FATCA and how it will effect me. I finally received a response via telephone.

Basically in a nutshell, FATCA is coming and there is no way to stop it.  Although the US Government does recognize the problems some countries will have (Canada in particular) with privacy rights etc, this will not be a show stopper.

The individual in question eluded to two possible solutions to the bank privacy laws, one was  a possiblility of entering into a  same country exception which would allow your information to be tabulated by the Canadian government, (i think thats how it works), and the other is to manipulate  language for those of us who are also US persons and re-classify us under a new title called  Unique Citizenship Status (her words not mine). Although she would not entertain much discussion on this matter, she did say that if you could provide a certificate of lost nationality prior to or during the implementation of FATCA, you would be relieved of this extra reporting criteria….(essentially giving  you  back your rights and freedoms!)

Finally, and the only question she could definitely not answer, is if FATCA is a forward looking legislation, or if it will be available to do past audits on certain account holders without there knowledge. In other words, once you sign away your privacy, could this new legislation be used by the IRS to start fingering through your past bank records to try and uncover, or discover something you may have forgotten to place on your FBAR etc?

In closing, I will tell you that the above information was derived from a phone call from someone high up in my personal Financial Institution….not sure if I can say the name of the institution but it starts with an ‘R’.

Also, not even sure if this individual is privy to all of the ‘goings on’ of FATCA or the direction there institution will take…..i will tell you that they refused to send me an email regarding my questions, so my assumptions were that they did not want this conversation to come back and haunt them from a liability perspective.

I am just sick and tired of going into my bank branch and getting the RCA Victor look from financial advisors when I ask about FATCA,

Apparently, Canada’s President of the Treasury Board, Tony Clement is sharing some advice with President Obama on how to run a government. But then the Canadian government doesn’t ‘have the checks and balances purposely enumerated in the U.S. Constitution to inhibit’ it.

What President Obama Doesn’t Want You To Know About Canada

Following Swisspinoy’s inspiration from his letter writing to HUD and VA on inability to get a mortgage, I also looked at a number of ways to creatively complain, get the message across, or otherwise be a pain in the neck to those powers that be in Washington. I too face the dreaded mortgage and banking issues in Switzerland.  Thus I would like to share the following, with the hope that as many Brockers as possible also find them useful and start flooding their inboxes and filling out complaint forms.

In addition to the HUD antidiscrimination statutes on mortgage lending per Swisspinoy, there is indeed a number of other Washington agencies concerned with discrimination and fair treatment, etc..

1.  The Consumer Product Protection Bureau, http://www.consumerfinance.gov/complaint/, allows you to file a complaint on numerous banking topics, ie. Credit cards, mortgages, bank account, etc..  I would say it is fair game to use this interface to complain about our issues even though it is cleary geared toward the 50 states (no surprise there).  Even if everyone just generically complains about the exterritorial reach of FATCA, someone will start to get the message. Continue reading →

A little while back, I wrote about my US home purchase adventure.  The latest thing on the topic is that I can’t purchase the home from abroad and would have to fly to the US or get a power of attorney.  Thoughts?  I’m quite clueless on legal matters.

I was talking to a bank today and they stated that if I have property in the US, then I’m considered to be “taxed by the US”, which could still possibly classify me as being a “US person” even if I don’t have US citizenship and am not taxed on non-US-income, meaning that banks could still deny me banking services.  I’ll have to clarify this, but it’s probably to soon in the process to get an answer.  Some banks are still unsure if they will provide US persons with banking services and it is not yet established who exactly is a “US persons”.

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Hoping Mr. Mopsick will chime in on this, but it seems every time I read something and begin to understand it, it either changes or I cannot find the text for clarification.

My understanding of the Internal Revenue Code 6677, specifically title 26, was that the IRS could not penalize you for more than the account was worth (for failure to file paperwork). In other words, if the gross reportable amount of an account was 1000 dollars, the penalty would be 10k, or 35% of 1000, but in no case would said penalty exceed 1000 ( in this case).

It seems that an individual on one of the tax forms has been penalized 10k for a 1000 dollar account. Now…this individual does go on to mention that, when confirmed he did send a reasonable cause letter for his late filing of a 3520 form, the IRS agent told him on the phone to ignore the fine.

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