Shattering four myths about the Foreign Account Tax Compliance Act: Why FATCA can and should be repealed

James Jatras, principal of Squire Sanders Public Advocacy, a Washington-based government relations firm, believes FATCA will be repealed once its cost to ordinary Americans becomes apparent.

For two years, much of the global financial community has been in an uproar about a pending US law that has barely been noticed in the United States. That may soon change as the unacceptable costs of the “Foreign Account Tax Compliance Act (FATCA) become fully apparent.

Enacted in 2010 as a supposed revenue-raiser pasted into an unrelated bill with almost no debate, FATCA requires every foreign financial institution (FFI) in the world to collect data on American-owned assets it holds and report them directly to the IRS. Any FFI failing to comply will have 30% of its American-derived income withheld. Together with additional complex rules, firms expect aggregate compliance costs in the tens of billions of dollars. In February, the US Treasury Department released 388 pages of draft FATCA enforcement regulations, now being finalized.

At the same time, Treasury announced an agreement in principle with five major European Union governments for a reciprocal “partnership”: instead of requiring FFIs in “partner” countries to report American-owned assets directly to the IRS, they will report to their own governments, who will then pass the information on to Washington. In return, the US will require domestic American institutions (banks, stock and equity funds, pension funds, insurance companies, etc.) to report to Treasury on assets belonging to citizens of the “partner” countries for transmittal to their governments. As additional countries join the initial five “FATCA partners,” a multi-governmental, perhaps eventually a global, financial information-sharing structure is forming.

Draft regulations on US institutions to implement the international “partnership” agreement have yet to be published, and understandably most Americans have not yet noticed FATCA. But as the FATCA boomerang begins its return flight back towards the US, myths already well-established abroad are beginning to shatter:

Myth 1: FATCA’s costs will fall only on foreigners, not Americans.

The canary in the FATCA coalmine is the five-million strong American expatriate community, already being treated as financial lepers by FFIs afraid of the 30% withholding penalty. If only a tiny fraction of $21 trillion in foreign investment in the US were pulled out over FATCA fears, the impact on the American economy and jobs could be devastating. Now, with FATCA-like requirements also in the offing for US domestic institutions, costs can be expected to be passed on to consumers, raising expenses for all Americans. Moreover, the “partnership” agreement will require transfers of personal financial information of millions of Americans (starting with dual nationals) and foreign residents with uncertain data protection to foreign governments and, in all likelihood, eventually to a central international repository. FATCA may also facilitate longstanding efforts to create a “global high-tax cartel” and even a supranational financial transaction tax.

Myth 2: By cooperating with the US, foreign “partner” governments are rescuing their firms from a crushing compliance burden.

Many firms in the five “partner” countries are breathing a sigh of relief that they will report to their own governments, not to the IRS, and firms in other countries are demanding their governments join in. They are mistaken. Upon examination, it’s clear who really is being rescued here: the IRS. Saddled with the Sisyphean task of extraterritorial enforcement on each and every financial firm (as broadly defined under FATCA) in the entire world, Treasury already had delayed by over two months the release of draft FATCA regulations last year – until it could unveil the “partnership” agreement, which in effect “allows” foreign governments to do IRS’s job for it. While it’s possible the “partnership” may provide foreign firms with some modest respite (and eliminates their terror of FATCA’s withholding provision), compliance costs – under domestic laws and regulations that will parallel the IRS’s 388 pages – may actually turn out to be greater than just complying with the IRS’s mandates. If, as described in the “partnership” announcement, FATCA becomes the “common model for automatic data exchange of information,” FFIs face the prospect of reporting on assets from multiple countries, not just one. In addition, under domestically imposed “partnership” compliance requirements, individual firms could be deprived of the ability to make their own business decisions about maintaining US clients and investments weighed against compliance costs.

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