I am occasionally asked for a list of the things I've written or presented about FATCA and citizenship-based taxation, and decided I may as well post it here. I have a newer article on the adoption of the IGA in Canada, will post that soon and add to this list.
- Uncle Sam Wants...Who? A Global Perspective on Citizenship Taxation (explaining the expansive US tax jurisdiction and its consequences on citizens abroad)
- Understanding the Accidental American—Tina’s Story (describing the “gotcha” of CBT and FATCA)
- Paperwork and Punishment: It’s Time to Fix FBAR (explaining FBAR, its mission creep, and its effects on USPersons living abroad)
- Taxpayer Rights, On and Off-shore (exploring tax complexity and compliance for nonresident US Persons)
- Regulating Tax Preparers: A Global Problem for the IRS (exploring the problem of regulating the tax compliance industry outside the US territory)
- Could a Same Country Exception Help Fix FATCA and FBAR? (calling for exemption of local accounts held by nonresident US Persons from FATCA reporting; third item in a compilation; scroll to p. 7 of the document).
- Two expert reports in connection with the Hillis v. Attorney General of Canada litigation.
- Submission to Finance Department on Implementation of FATCA in Canada (discussing legal issues with proposed adoption of IGA)
- What You Give And What You Get: Reciprocity under a Model 1 IGA (explaining asymmetrical account disclosure and sharing requirements)
- Tax Cooperation: Past, Present and Future (explaining why FATCA is a tax treaty override & the IGAs do not “cure” it)
- The Dubious Legal Nature of IGAs and Why it Matters (arguing that the IGAs violate the US constitution regarding the treaty power, and thereby implicate public international law as to the treaties they ostensibly interpret)
- Interpretation or Override: Introducing the Hybrid Tax Agreement (further analysis on the public international law problems created by the IGAs)
- Putting the Reign Back in Sovereign: Advice to the Second Obama Administration (analyzing FATCA’s unilateral nature and its implications for international tax policy)
- Interview with Tax Analysts (November 2015)
- Podcast with the McGill Law Journal (February 2014)
- Testimony to Finance Committee (March 2014)
- Interview with CBC News (January 2014)
- Interview with CBC Radio "All in a Day" (July 2014)
- Explaining the basic structure and issues surrounding FATCA (2012-prior to the IGA era)
Tagged as: citizenship FATCA scholarship tax policy
Leopoldo Parada has recently posted on SSRN an article published last summer in the World Tax Journal, entitled Intergovernmental Agreements and the Implementation of FATCA in Europe, of interest. Here is the abstract:
FATCA is a US domestic tax policy that requires Foreign Financial Institutions around the world to provide the IRS information regarding their US clients. Recognizing this extraterritorial characteristic and the troubles associated with it, the US Treasury Department developed the Intergovernmental Agreements (IGAs), which have served the double purpose of coordinating FATCA at an international level and influencing the new international standards on automatic exchange of information. Nevertheless, the IGAs are instruments that still need to be improved, at least in order to guarantee their successful implementation in Europe. The first part of this article explores the legal nature and the characteristic of the IGAs, concluding that they possess an asymmetriclegal nature that can lead to conflicts of interpretation. Likewise, it concludes that their contribution toward international transparency is incompatible with the existence of other instruments in Europe that seek the opposite goal of protecting bank secrecy, although it recognizes the importance of the most recent achievements at the European level in order to ensure a coherent and consistent system of automatic exchange of information. The second part of this article analyses three grey areas in the IGAs implementation process in Europe (i.e., “quoted Eurobonds” in the United Kingdom; group requests under the Switzerland-United States IGA, and the “coordination timing” provision of the IGA Model 1A), concluding that there is still work to be done in order for the IGAs to grant an acceptable level of reciprocity in practice.I was not aware of this article when I wrote on a column last fall on this very same topic, in which I called the IGAs "Hybrid Tax Agreements" and pointed out the mess created by their unprecedented legal form as treaties to the rest of the world but administrative guidance in the United States. Parada's article goes further in the analysis and lays out a number of enduring difficulties. It seems to me that governments are simply ignoring these difficult issues as inconvenient barriers to desired outcomes and courts will face the same temptation. But I don't think these issues go away with time and gradual acceptance of FATCA as an institution. Instead, I think the issue will cause systemic problems going forward, both in terms of raising endless conflicts of law, and in terms of the precedent set for international tax relations by the failure of states to challenge US exceptionalism even as it tramples on law and legal process throughout the world.
Tagged as: FATCA IGAs international law scholarship
The grassroots group responsible for launching the FATCA-based litigation in Canada has issued a public call for witnesses. They are looking for "a Canadian who has been somehow harmed by this FATCA legislation, are interested in helping out by becoming a Witness in our lawsuit, and are willing to have your affidavit statements and name go public." The group is up front about the risks involved in coming forward: being a witness is to expose oneself to public scrutiny, some of which is decidedly hostile, as well as of course the risk of ruinous consequences deriving from US tax rules as they apply to noncompliant nonresident persons' lives.
Tax Analysts has published my talk on taxpayer rights and citizenship-based taxation as enforced via FATCA, which I gave in November at the International Conference on Taxpayer Rights in Washington DC, organized by National Taxpayer Advocate Nina Olson. Tax Analysts' content is normally gated but they have made this column available on their free site.
Tagged as: citizenship compliance fairness FATCA human rights tax policy US
I recently sat down with Bob Goulder of Tax Analysts to talk about FATCA, citizenship-based taxation, renunciation, and taxpayer rights.
Tagged as: FATCA human rights justice tax policy US
The IRS faces constant funding pressure from Congress, despite becoming a victim of constant mission creep thanks to Congressional mandates (ACA and FATCA in particular). Over the years many have pled with Congress to stop underfunding the agency. The latest comes from seven former commissioners, who note that not least among the reasons to fund the IRS is the need to spend money on cyber security as the IRS fends off one million hacking attempts each week.
That's a lot of hacking because of course the payload is enormous. FATCA has surely expanded the payload significantly by developing an enormous database of personal information attached to bank account numbers and detailed account activity on a global scale. Even a small breach of security with respect to that vault will be disastrous for the taxpayers involved.
The commissioners also suggest that the IRS workload is going to increase due to BEPS. BEPS is expected to result in more treaty-based conflicts among jurisdictions, so I expect more competent authority hours will be needed. But it's likely also the case that country-by-country reporting requirements will add another enormous treasure trove of information to the database, further increasing the payload.
At minimum, Congress has simply got to fund security for this massively expanding taxpayer information database.
November 9, 2015The Honorable Thad CochranChairmanCommittee on AppropriationsUnited States Senate113 Dirksen Senate Office BuildingWashington, D.C. 20510The Honorable Harold RogersChairmanU.S. House Committee on AppropriationsU.S. House of Representatives2406 Rayburn House Office BuildingWashington D.C. 20515The Honorable Barbara A. MikulskiVice ChairwomanCommittee on AppropriationsUnited States Senate503 Hart Senate Office BuildingWashington, D.C. 20510The Honorable Nita M. LoweyRanking MemberU.S. House Committee on AppropriationsU.S. House of Representatives2365 Rayburn House Office BuildingWashington, D.C. 20515
Subject: IRS Appropriations for Fiscal Year 2016
Dear Chairman Cochran, Vice Chairwoman Mikulski, Chairman Rogers and Ranking Member Lowey:
We are all former Commissioners of the Internal Revenue Service. Over the last fifty years we served during the administrations of Presidents John F. Kennedy, Lyndon B. Johnson, Ronald Reagan, George H.W. Bush, William J. Clinton, and George W. Bush.We are writing to express our great concern about the proposed reductions by the House and Senate in appropriations for the Internal Revenue Service for the current fiscal year that will end on September 30, 2016. We understand that the Appropriations Committees in the House and Senate have proposed to reduce the FY 2015 IRS appropriation of $10.9 billion by $838 million and $470 million, respectively, for the current fiscal year. If Congress were to reduce the IRS appropriation for the current year, it would represent yet another reduction in the IRS appropriation. The appropriations reductions for the IRS over the last five years total $1.2 billion, more than a 17% cut from the IRS appropriation for 2010. None of us ever experienced, nor are we aware of, any IRS appropriations reductions of this magnitude over such a prolonged period of time. The impact on the IRS of these reductions is that the IRS has lost approximately 15,000 full-time employees through attrition over the last five years, with more losses likely in the current fiscal year unless Congress reverses the funding trend. These staffing reductions come at a time when the IRS workforce is aging, with nearly 52% of IRS employees now over the age of 50 and 24% already eligible to retire. Three years from now, 38% of IRS employees will be eligible to retire. This loss of IRS knowledge and experience is alarming, particularly in light of the fact that, out of a present workforce of about 85,000 employees, the IRS has only about 3,400 employees under the age of 30 and only 384 employees under the age of 25 due to hiring freezes for budgetary reasons at the IRS since 2010 and periodically from 2005 to 2010. Over the last fifty years, none of us has ever witnessed anything like what has happened to the IRS appropriations over the last five years and the impact these appropriations reductions are having on our tax system.These reductions in IRS appropriations are difficult to understand in light of the fact that, at the same time these reductions have occurred, the Congress repeatedly has passed major tax legislation to substantially increase the IRS workload. Most recently the Congress passed the Foreign Account Tax Compliance Act and the Patient Protection and Affordable Care Act, two major new programs, each of which significantly expands the IRS' tax administration burdens. The IRS personnel reductions come at a time when the IRS is stretched to the breaking point to cope with tax enforcement challenges attributable to global and domestic changes that are impacting our tax system. Increasingly, the United States is facing tax challenges as the result of efforts that are taking place in the international tax arena to deal with the tax non-compliance that is accompanying the continued globalization of business and investment activities. The most recent tax changes to address international tax non-compliance are proposed in the Organization for Economic Cooperation and Development's (OECD) Base Erosion and Profit Shifting Report. Regardless of one's view of these proposed changes, it is clear that the IRS will be substantially impacted by changes and challenges of other countries who adopt them.Additionally, increasing incidents of identity theft and refund fraud are being perpetrated against our tax system by large, sophisticated organized crime syndicates around the world. These criminals seek to file false returns and claim fraudulent refunds using personal taxpayer data obtained from sources outside the IRS. At the same time, many unlicensed, unregulated return preparers are preparing and filing fraudulent tax refund returns. Every time there is an information technology hacking event in the public or private sectors in which Social Security numbers are stolen, the likelihood exists for additional identity theft and refund fraud. The growing refund fraud challenge to our tax system is especially alarming to us because of the need, which is fundamental to our tax system, for the IRS to be able to assure taxpayers who are paying their fair share of taxes that other taxpayers are doing the same thing. To emphasize the seriousness of refund fraud, the Government Accountability Office earlier this year placed identity theft and refund fraud on its list of "high risk areas" in the federal government, a sure sign to each of us that the IRS should have more, not fewer, enforcement resources to deal with this threat to the integrity of our tax system,To place the impact on our tax system of the Congressional IRS appropriations reductions over the last five years in its proper context, Congress almost annually over the last 25 years has passed legislation that has imposed additional burdens on IRS tax collection and administration under our revenue laws. During this time, the Congress also repeatedly added more and more socio-economic incentives to the tax code and called upon the IRS to administer these new socio-economic programs, including healthcare, retirement, social welfare, education, energy, housing, and economic stimulus programs, none of which is related to the principal job of the IRS to collect revenue. At the same time, Congress passed even more legislation to pay for these tax spending programs. The result is that almost 30 years after the 1986 Tax Reform Act, our tax laws are a mess. Our tax laws have become so difficult for taxpayers to understand that 80% of all individual taxpayers now use paid consultants or software to prepare their income tax returns. Because of insufficient IRS resources in FY 2015, an average of more than 60 percent of the taxpayers who called the IRS for assistance in preparing their returns during the last filing season were unable to reach an IRS assistor, even after many taxpayers had remained on the telephone for more than 30 minutes before they were automatically cut off because of the volume of calls, which the reduced numbers of IRS assistors were unable to handle. Equally serious are the cybersecurity threats illustrated by the problem that occurred earlier this year involving unauthorized attempts to access taxpayer information using the IRS' Get Transcript online application. Separately, the IRS continues to experience about one million attempts each week to hack into its main information technology systems. Although the IRS has so far successfully thwarted these attacks and its main systems remain secure, all of this astonishes us and emphasizes to each of us that the IRS taxpayer assistance and IRS information technology resources are severely underfunded, especially when compared to the increasing cybersecurity budgets of private sector companies.It is clear to each of us that the IRS appropriations reductions over the last five years materially and adversely affect the ability of the IRS to assist taxpayers who are trying to comply with their tax obligations, as well as the ability of the IRS to detect and deter taxpayers who have not complied with their tax obligations. Recently, we understand that the IRS estimated a direct annual revenue loss to the Federal government in tax enforcement at $6 billion last year and $8 billion this year, due to such appropriations reductions. Historically, for every dollar invested in IRS tax enforcement, the United States received $4 or more in return, and we understand that continues to be true today.The Congressional Budget Office in its June 2015 Long-Term Budget Outlook projected future fiscal challenges to the United States because of the large and increasing size of our national debt and rising future operating deficits attributable to an aging U.S. population and rising healthcare costs. It, therefore, is imperative that our tax system in the future operate at an optimal level in order to maximize the revenues the IRS collects. For that to happen, the IRS must be able to assist taxpayers who are trying to comply with their tax obligations, and at the same time be able to enforce the tax laws against those taxpayers who have not complied with their tax obligations. In short, because of our country's fiscal and other challenges, our tax system must work and work well to collect the taxes that are owed.Some have argued that the IRS can solve these problems by simply becoming more efficient. This argument ignores the reality that the IRS is already, by far, the most efficient tax collection agency among large countries in the world. The OECD recently released its bi-annual analysis of tax administration across the developed world and reported, based on 2013 statistics which don't reflect the most recent IRS budget cuts, that the amount the IRS spends to collect a dollar in taxes is approximately half the average amount spent by all OECD countries. Germany, France, England, Canada and Australia all spend as much as two to three times the amount the IRS does to collect a dollar of revenue.In light of the foregoing, we fail to understand how it makes any logical sense to continue to reduce, rather than increase, the IRS budget for FY 2016 in order to optimize the IRS' ability to provide taxpayer service and to enforce the tax laws to increase revenue collections. To put it succinctly, we do not understand why anyone with present and projected debts and annual losses as large as those of the United States would refuse to pay for telephone assistance to people trying to fulfill their tax obligations, would turn their back on $8 billion annually in additional revenue, or would fail to make an investment that offers a return equal to at least four times the amount invested. For these reasons, we respectfully call upon each of you to support and work to accomplish the passage of an IRS appropriations request for FY 2016 that is substantially in excess of the appropriation for the IRS in FY 2015.Mortimer M. Caplin (1961-64)Sheldon S. Cohen (1965-69)Lawrence B. Gibbs (1986-89)Fred T. Goldberg, Jr. (1989-92)Shirley D. Peterson (1992-93)Margaret M. Richardson (1993-97)Charles O. Rossotti (1997-2002)
Tagged as: FATCA governance information institutions IRS US
I recently published "Interpretation or Override? Introducing the Hybrid Tax Agreement." Here is the abstract:
In the effort to overcome foreign law impediments to the implementation of the Foreign Account Tax Compliance Act (FATCA), the U.S. Treasury introduced intergovernmental agreements (IGAs). IGAs are hybrid tax agreements: Treaties to most of the world, in the United States they instead constitute an executive interpretation of the underlying tax treaty. This introduces a great deal of interpretive uncertainty where the terms of IGAs and tax treaties conflict. Prompted by recent queries in the EU regarding the legal nature of the IGAs, this article explores a concrete example of the legal principles at stake by examining how the public policy rules for information sharing found in US tax treaties interact with the information exchange provisions found in the IGAs.Further in, I explain that it is difficult to understand how as a matter of international law the IGA, as a document that purports to "interpret" the underlying tax treaty, in fact obviates some of the provisions of the treaty, but do so only for the party other than the United States. I conclude:
Process matters in law. It is what makes the rule of law function as a legitimate source of authority. It is ironic that even as the United States partners with its fellow OECD members to try to address the major challenges to international taxation posed by hybrid legal entities and hybrid financial instruments, Treasury has invented the hybrid tax agreement. Conflicts resulting from this invention are inevitable and I anticipate they will be costly. I believe that Treasury took a few shortcuts around established legal precedents on the road to implementing FATCA. I understand that this may be considered expedient in the effort to get FATCA to work. But in the long run the sacrifice renders a disservice to the rule of law. That sacrifice deserves careful reflection by all those affected.I continue to be fascinated by the rapid developments in international taxation over the past several years, in terms of both substance and process/rule of law.
Tagged as: FATCA governance IGAs scholarship tax policy treaties US
This week at the University of Michigan Law School, Reuven Avi-Yonah and I are co-hosting an academic workshop on the topic of citizenship and taxation. Because it is a workshop, most of the papers are still in draft and won't be publicly available for some time. However, we will be doing a writeup of the proceedings and I'll post that when it is available, and of course I'll post when the symposium volume is published. Here are the speakers and topics:
- Reuven Avi-Yonah (Michigan) Constructive Unilateralism : US Leadership and International Taxation
- Allison Christians (McGill) Uncle Sam Wants … Who?
- Wei Cui (UBC) Residence and Source as Interconnected Concepts
- Tessa Davis (South Carolina) Of Tax Crimes and “Bad” Citizens: How the Role of Tax Law in Making a Citizen Informs Tax Law and Policy
- Jane Frecknall-Hughes (Hull) Tax and the citizen: the philosophical underpinnings
- Christine Harlen (Leeds) Making America Exceptional: Perfectionist Civic Republicanism and the Taxation of Americans Abroad in the Progressive Era, 1890-1920
- Michael Kirsch (Notre Dame) The Taxation (or Non-Taxation) of Citizens’ Foreign Income: Distilling the Competing Normative Arguments
- Sagit Leviner (Ono) Citizenship Transcendent
- Patrick Martin (Procopio) Tax Simplification: The Need for Consistent Tax Treatment of All Individuals (Citizens, Lawful Permanent Residents, and Non-Citizens regardless of immigrant status) Residing Overseas, Including the Repeal of U.S. Citizenship Based Taxation
- Ruth Mason (Virginia) Citizenship Taxation
- Linneu Mello (Bichara) How the Brazilian Tax Authorities Control Information and What FATCA Has To Do With It
- Henry Ordower (St. Louis) Is the Expatriation Tax Constitutional? Mark to Market and the Macomber Conundrum
- Adam Rosenzweig (Washington St. Louis) Once a US Person, Always a US Person
- Daniel Shaviro (NYU) Taxing Potential Community Members’ Foreign Source Income
- Peter Spiro (Temple) Citizenship Overreach and the U.S. Tax Regime
- Saul Templeton (Calgary) Bill C-51, FATCA, and the End of Taxpayer Privacy
- Edward Zelinsky (Cardozo) The Problems of Defining Residence: The U.S. Experience
- Montano Cabezas (Georgetown) Reasons for Citizenship-Based Taxation?
- Christine Kim (NYU) Considering “Citizenship Taxation” : In Defense of FATCA
- Gene Magidenko (UMich) – A Defense of Citizenship Taxation
- Gianluca Mazzoni (Brescia) The Interaction Between FATCA and Data Privacy
- Miguel Nicolas (UParis) FATCA and International Law
Tagged as: citizenship conference scholarship tax policy u.s.
The Federal Court of Canada (Martineau J.) issued a decision in the Canadian FATCA IGA litigation on September 16, ruling against the plaintiffs by finding that the provisions of the IGA are duly enacted law, thus clearing the way for the Canadian tax authorities to furnish information to the United States. You can read the decision here. Today, the Plaintiffs made a motion for an interlocutory injunction pending appeal of the decision.
Because of my role as an expert witness I will abstain from detailed comments other than to stand by my submissions, but I do note the overwhelming sense of judicial impotence expressed in the September 16 decision. The decision notes that the issues at stake involve injustice at the individual level as well as harsh dealings in terms of sovereign relations. As to the former, the legality of the regime is given as its justification, while the latter are deemed inappropriate matters for judicial intervention. Instead the plaintiffs are directed to seek redress for the personal effects of these circumstances though political and administrative channels.
In my view it was political malfunction in both the US and Canada that brought forth FATCA and then the FATCA IGA, and that FATCA as applied can be summed up in terms of administration as a case of continuous indifference to individuals who are wrongdoers in no real sense yet bear the brunt of severe punishments meant for others. If the judiciary is also not to blame and not to fix, then it seems there is no avenue to right the wrongs of FATCA anywhere. I hope that is not the case.
In any event, two days after the decision was released, the IRS announced another delay in FATCA, this time for Model 1 IGA countries. Model 1 IGA countries involve government-to-government sharing, as compared to Model 2, under which financial institutions directly report to the IRS pursuant to authority granted by their home governments. Canada has a Model 1 IGA so it could delay furnishing information to the United States if it notifies the IRS before September 30, 2015 "and provides assurance that the jurisdiction is making good faith efforts to exchange the information as soon as possible." There have been some efforts to compel the Canadian government to avail itself of this option (see, e.g., here and here), but I am not sure how to monitor the government's response.
More to come as events unfold.
As readers may be aware, two Canadian citizens filed a lawsuit last year against the Attorney General and the Minister of National Revenue in the Federal Court of Canada (Federal Court File T-1736-14). Over the past two days in Vancouver, the parties have presented their arguments in a summary trial in front of the Hon. Luc Martineau. The summary trial involves arguments on the parties' affidavits and cross-examinations undertaken prior to the hearings--no live witnesses.
In broad strokes the suit seeks to prevent the Canadian Revenue Agency from furnishing to the US Internal Revenue Service the personal and financial account information of Canadian citizens pursuant to the FATCA IGA signed by Canada and enacted into law last year. This is not a charter-based (constitutional) challenge, rather it is a challenge that certain provisions of the IGA are unlawful based on the Canada-US Tax Treaty Act (which in effect ratifies the US Canada Tax Treaty) and the Income Tax Act. Thus it is not about fundamental rights and freedoms at this stage, but about an interpretation of relevant laws, including the existing tax treaty.
The litigants are being funded by a grassroots group that organized itself for this purpose, called the Alliance for the Defence of Canadian Sovereignty/L'Alliance Pour la Défense de la Souveraineté Canadienne (ADCS). ADCS has many of the court filings available here and here and here, and one of the group's organizers has blogged about the proceedings here and here. While the lawsuit made the news when it was filed, e.g. here and here among several others, I am seeing virtually no press coverage at this stage, except for one brief article here. That is a shame and I hope that journalists will renew their interest in this issue.
Long-time readers will be aware that I made a submission to the Department of Finance concerning many of the legal issues surrounding the adoption of the IGA, that I understand FATCA to be a tax treaty override that is not cured by the IGAs, and that I understand the IGAs to lack validity as legal instruments under US law. In connection with this litigation, I wrote two "expert reports" and was cross examined for purposes of the summary trial; the reports and transcript are part of the court record and mostly available at the links above, but I will also make the reports available on request. If and when additional information about the summary trial becomes available I will update this post.