Foreign Account Tax Compliance Act Research Articles

While Parliament Sleeps: Tax Treaty Practice in Canada

Canada’s Parliament plays little but a perfunctory role in the adoption of tax treaties, even though these agreements have significant impact on Parliamentary autonomy over core national budgetary matters as well as core legal and administrative functions. This article argues that Canada’s tax treaty process reflects a studied and intentional preference against public engagement in international fiscal policy, and that this stance has a negative impact on the rule of law. The article demonstrates the governance issue posed by lack of meaningful Parliamentary oversight using a recent departure from stated treaty policy, namely, the passage of a controversial agreement to implement the Foreign Account Tax Compliance Act (FATCA), an aggressive and extra-territorial regulatory regime imposed on Canadian financial institutions by the United States. The article examines the implications of Canada’s approach to this and other tax-related agreements and concludes that a much more engaged and informed Parliament is vitally necessary to achieve integrity in Canada’s treaty process.

Withholding Certificates and Self-Certifications under FATCA-Part II

This review article analyzes and explains the formal requirements for a withholding certificate (or any acceptable substitute) to be valid under the Foreign Account Tax Compliance Act (FATCA). It is an addition to the already published article “Withholding Certificates and Self-Certifications under FATCA”.

Cross-Border Tax Evasion Under a Unilateral FATCA Regime

Cross-border tax evasion has emerged in recent years as a central issue in tax enforcement. Traditionally, the legal regime governing cross-border tax enforcement was based on information exchange upon request. In 2010, the US Congress enacted the Foreign Account Tax Compliance Act (FATCA), which seeks to induce foreign financial institutions (FFIs) to participate in a global regime of automatic information reporting of the income of US residents to the US government. This paper presents a simple theoretical model of cross-border investment that analyzes the consequences of this (unilateral) FATCA regime. The model emphasizes cross-border investors’ (heterogeneous) intrinsic motivation to comply with tax law, as well as the impact of information reporting requirements on the cost of providing financial services. In FATCA-compliant equilibria (in which FFIs report information to the US government) FFIs face a higher cost of providing financial services, increasing the fees charged to their accountholders. Consequently, tax-compliant behavior – such as investing via their domestic financial sector – becomes more costly for foreign residents. Under certain conditions, a unilateral FATCA regime causes increased cross-border tax evasion among residents of foreign countries. This result is robust to various extensions.

American experience in the implementation of AML / CFT system

This article presents a research into very specific matters and issues of creating and further improvement of Anti-Money Laundering and Combating the Financing of Terrorism system (abbreviated as AML/CFT) in the USA. In contains a precise analysis of key elements of this system, as well as a deep look into the nature and purposes of financial intelligence “FinCEN”. Strong emphasis is laid on The US Foreign Account Tax Compliance Act (FATCA) for the reason that, according to this Act, any foreign financial institution is legitimately forced to sign a special agreement with The US Internal Revenue Service (IRS), giving the Service power to maintain control over any American asset within its equity. The latter is understood as a legal right to investigate not only the accounts and property of American taxpayers, but to investigate any account or capital of any foreign institution having American shares or stocks.

Tax Information Exchange with Developing Countries and Tax Havens

The exchange of tax information has received ample attention recently, due to a number of recent headlines on aggressive tax planning and tax evasion. Whilst both participating tax authorities will gain when foreign investments (FDI) are bilateral, we demonstrate that FDI receiving nations will lose in asymmetric situations. We solve a bargaining model that proves that tax information exchange will only happen voluntarily with compensation for this loss. We then present empirical evidence in a global panel and find that a tax information exchange agreement (TIEA) or a double tax treaty with information exchange (DTT) is more likely when the capital importer is compensated through official development assistence (ODA). We finally demonstrate how the foreign account tax compliance act (FATCA) and similar international initiatives bias the bargaining outcome in favour of capital exporting countries. (authors' abstract)

Advising the expatriating American: beware the exit tax

The US Foreign Account Tax Compliance Act (FATCA) reporting regime has caused such hardships for its citizens living abroad that they are heading for the exits. The renunciation of citizenship, however, exposes the expatriates to the complicated and often expensive US exit tax. Advisors to these persons need to be aware of the fundamentals of the taxation scheme and encourage their clients to plan before renouncing.

FATCA violation underlies latest US tax and securities fraud charges

Purpose – To explain the details and implications of a September 9, 2014 federal indictment, US v. Robert Bandfield, the first time a Foreign Account Tax Compliance Act (FATCA) violation has been charged as an “overt act” in furtherance of a tax conspiracy and securities fraud. Design/methodology/approach – Provides background, including the enactment of FATCA and the details of the indictment; describes an undercover investigation conducted by President Obama’s Financial Fraud Enforcement Task Force; and discusses the warnings this indictment sends to the global financial community. Findings – The indictment confirms the coordinated and aggressive tactics US law enforcement is now employing to investigate and prosecute offshore financial fraud. Practical implications – Banks and financial service providers need to be aware of the impact of enhanced US regulatory obligations and implement appropriate compliance measures. These institutions must also remain sensitive to risks presented by unscrupulous customers. Finally, they must be ready to manage appropriately information-gathering and investigatory inquiries originating with US authorities. Originality/value – Practical guidance from experienced tax controversy lawyers.

Tax Information Exchange with the United States

On March 20, 2015, the Croatian finance minister Boris Lalovac and the US ambassador to Croatia Kenneth H. Merten signed an intergovernmental agreement on the application of the US Foreign Account Tax Compliance Act (FATCA). The Act that came into force in the US in March 2010 regulates tax compliance obligations of US taxpayers with respect to their accounts held with offshore financial institutions.

Foreign Account Tax Compliance Act An Overview

The Hiring Incentives to Restore Employment (HIRE) Act of 2010 was enacted by the 111th United States (US) Congress on March 18, 2010 to provide payroll tax forgiveness for hiring unemployed workers and business credit for retention of certain newly hired individuals in 2010. The Foreign Account Tax Compliance Act (FATCA) was also enacted March 18, 2010 as a new Chapter 4 to sub-title A of the Internal Revenue Code (IRC), as part of the HIRE Act to combat tax evasion by US persons holding investments in offshore accounts. The Foreign Financial Institutions (FFIs) were required to enter into an agreement with the US Treasury Department consequent to which they become participating FFIs. However, to counter the difficulty of high costs and clashes with the domestic laws of other countries, US came up with Inter Governmental Agreements (IGA) as an alternative for the implementation of FATCA. Under the IGA Model, FFIs in a FATCA partner country wouldn’t be required to enter into an agreement with US Internal Revenue Service (IRS) though, would be subject to an IRS registration requirement. Two models of IGA have been proposed: -‹‹Model 1 IGA is based on G5 (Germany, the United King- dom, Spain, France and Italy) joint statement under which reports on US account holders is to be made available by the FFIs to local tax authorities, who then will share this information with the US IRS under existing information sharing arrangements. -Model 2 IGA is based on joint statement made with Japan and Switzerland under which the FFIs would be required to report to IRS directly, and IRS with a view to obtain the information on those account holders who refuse to provide it to the FFI, can request the local authorities to provide it.

Withholding Certificates and Self-Certifications under FATCA

This review article analyzes the term withholding certificate and self-certification under the Foreign Account Tax Compliance Act (FATCA). It shows which types of forms exist in order to establish an account holder’s FATCA status (chapter 4 status). It proofs in particular under which conditions a Participating Foreign Financial Institution may use its own form in lieu of an official IRS form.

A Normative Evaluation of Tax Law Enforcement: Legislative and Political Responses to Tax Avoidance and Evasion

The premise of this article is that there exist equilibrium between the fairness of a tax and the moral obligation to pay. In the context of tax avoidance, the question arises how much tax should be considered to constitute a fair share for an individual person or corporation. Current doctrine seems to accept that the law provides a bandwidth for fair share, and tax reduction planning within the bandwidth is acceptable. The scope of the obligation to pay fair taxes, and the moral legitimacy of enforcement methodology used by tax authorities in coercing compliance with tax laws also constitute a moral or normative equilibrium: the wider the scope of the obligation to pay, the further the reach of tax law enforcement; and, the narrower the scope of the obligation to pay, the shorter the reach of tax law enforcement. Tax law enforcement requires a degree of proportionality. Proportionality in this context means a cost/benefit analysis of any enforcement measure, including the impact of enforcement measures on bona fide taxpayers. On the basis of the normative standards developed in the first part of this article, three more recent developments in the area of tax law enforcement will be evaluated, namely the OECD fight against tax havens; the US Foreign Account Tax Compliance Act (FATCA); and the practice of public shaming in the UK.

Herding Cats and Taming Tax Havens: The US Strategy of ‘Not In My Backyard’

AbstractRecent G8 and G20 statements, combined with a number of OECD campaigns have given an impression that the world has entered a phase of re‐invigorated multilateral efforts to combat tax abuse. We argue that this impression is not entirely mistaken, but the centre of gravity in the battle against tax abuse generally, and tax havens specifically, is shifting decidedly towards unilateral approaches. The US is, in particular, in flexing its muscles attempting to ensure that the various mechanisms used to evade taxation and perpetrated through tax havens have little impact on its ‘back yard’. We call this the ‘Not In My Back Yard’ (NIMBY) principle of regulation, which underpins the new Foreign Account Tax Compliance Act (FATCA). The NIMBY principle, we argue, is likely to be adopted by other large political entities.

Submission to Finance Department on Implementation of FATCA in Canada

The United States enacted a tax reform in 2010 known as the Foreign Account Tax Compliance Act (FATCA), which will impose an extensive third-party monitoring and disclosure regime on financial institutions around the world in an effort to “smoke out” American tax cheats and expose their undeclared foreign assets to the U.S. Internal Revenue Service (IRS). The flow of information from Canadian financial institutions directly to the IRS that is required by FATCA would violate a number of laws in Canada. Accordingly, the United States has requested changes to these laws. The Canadian government now seeks to accommodate these requests in the form of an “intergovernmental agreement” (IGA) with the United States, which will be enacted into law as the Canada–United States Enhanced Tax Information Exchange Agreement Implementation Act (the Implementation Act) pursuant to a proposal released for comment by the Department of Finance. The Department of Finance invited public comments on these documents. We examined the proposed Implementation Act and the IGA and we find that they raise a number of serious issues ranging from likely constitutional violations to violations of international law. We submit these comments in the hope that they will help lawmakers and the public understand that FATCA, while intended to catch tax evaders, is poised instead to impose serious and unjustified harms on people who live around the world as non-resident U.S. citizens and green card holders, as well as their family members and business associates.

FATCA: Catalyst for Global Cooperation on Exchange of Tax Information

In this article, the author describes the main features of the Foreign Account Tax Compliance Act (FATCA), the events that led to its enactment and the development of global cooperation for information exchange.

The deadweight cost of implementation of the Foreign Account Tax Compliance Act (FATCA).

From 1 June 2013 FATCA – the new American law on the disclosure of financial information about foreign accounts for tax purposes – came into force. The aim of the Foreign Account Tax Compliance Act is to prevent the tax evasion of US citizens with offshore accounts. The Act requires all foreign financial institutions to identify American people in possession of the financial accounts (banking, brokerage, etc.), and then transmit that information to the tax authorities of the United States. The penalty for failure to comply with this requirement will be a 30% withholding tax on capital flows from the United States. The article presents the main issues connected with FATCA and brings closer the arguments pro and contra. As the Act results in new requirements which non-US financial institutions have to fulfil, the paper looks both at the legislative and cost-related problems. It also analyses how the new provisions will influence Polish financial institutions and their customers.

FATCA for CLOs: Status Report

The Foreign Account Tax Compliance Act (FATCA) requires foreign financial institutions (FFIs) to conduct due diligence on their financial account owners to identify specified U.S. persons, report U.S. account owners to the U.S. IRS, and apply withholding as appropriate. The definition of “financial institution” is very broad and will encompass nearly all non-U.S. collateralized loan obligation (CLO) vehicles. CLOs invest in debt instruments, many of which are issued by U.S. corporations. Should the CLO vehicle fail to become FATCA compliant, issuers of U.S. debt will be required to withhold 30% of certain payments of interest starting on July 1, 2014, and certain payments of gross proceeds from the sale or other disposition of the underlying loans starting in 2017. To become compliant under FATCA and avoid the additional U.S. tax withholding, a CLO vehicle will be required either to enter into an FFI agreement with the IRS or to qualify under one of the categories established for deemed-compliant entities that are considered to present a lower risk of tax evasion. This special category falls into two regimes: registered deemed compliant, whereby the FFI still must register with the IRS but does not need an FFI agreement, and certified deemed compliant, whereby the entity can certify its compliance to counterparties and does not need to enter into an FFI agreement or register with the IRS. In addition, deemed-compliant status can be achieved by complying with the terms of an intergovernmental agreement (IGA). In response to the industry-specific issues raised by CLOs, the International Swaps and Derivatives Association, the Loan Syndications and Trading Association, and the Securities Industry and Financial Markets Association have been active in their efforts to carve out exceptions for both existing and new CLO vehicles. <b>TOPICS:</b>CLOs, CDOs, and other structured credit, legal/regulatory/public policy

The Road to FATCA in the European Union

The author discusses the EU response to the US Foreign Account Tax Compliance Act (FATCA), which allows the US Internal Revenue Service (IRS) to gather information concerning the accounts of US taxpayers in foreign banks. Banks and financial institutions worldwide are required to gather the information or a 30% tax on capital flows from the United States is imposed. The article looks at the due diligence burden resulting from FATCA, as well as legal concerns – notably data protection issues.

FATCA and Tax Treaties: Does It Really Take Two to Tango?

Tackling tax avoidance is high on the agenda of states. The latest US approach to this problem was to enact the Foreign Account Tax Compliance Act (FATCA), which, in certain respects, overrides its existing tax treaties with its FATCA partners. In this article, the author provides an overview of the main FATCA provisions and implementation process, which serves as the basis for a discussion on the extraterritorial scope of FATCA and its legal implications.

Rethinking FIRPTA

Since 1980, the United States has taxed U.S. real property gains of foreign investors. A nonresident must pay tax on the capital gain from the sale of U.S. real property or rights in U.S. real property, as well as on the sale of shares in non-publicly held domestic corporations that hold significant U.S. real property assets. The United States imposes a withholding liability on the purchaser based on a percentage of the purchase price. Moreover, by owning U.S. real property, foreign investors are subject to Internal Revenue Service (IRS) investigatory powers. Because of these rules, foreign investors spend significant resources to structure investment in U.S. real property assets to avoid being deemed an owner of the underlying real property for taxation purposes. This has rendered the underlying statute, the Foreign Investment in Real Property Act of 1980 (FIRPTA), elective.This electivity results in the United States exhibiting tax haven characteristics for inbound real estate investments. Rather than tightening the rules to eliminate this friction, Congress has recently proposed even looser requirements. The resulting narrative by practitioners and policy makers is that FIRPTA should be eliminated. The United States currently needs more, not less, collection of taxation. The fact that FIRPTA is either easily arbitraged or not properly collected should not result in the repeal.This Article proposes a new way of addressing FIRPTA by expanding the use of reporting requirements to capture the leakage and provide a mechanism for effectively eliminating the use of structuring to avoid the tax. Through the introduction of systems recently employed in the Foreign Account Tax Compliance Act (FATCA) regime, Congress can implement an effective penalty structure to ensure proper collection of taxation and achieve the stated goal of FIRPTA -- an equal tax burden independent of the status of the investor. The goal of the proposal is to have a more cohesive and coherent FIRPTA regime by replacing a gross income tax regime with a net income tax regime with a backup withholding. Given the United States’ position as a market leader in a limited market, there should be a more aggressive tax collection stance taken. The U.S. real property market is relatively inelastic as compared to equities; thus, an aggressive U.S. position will not have much if any downside.

Toward an Automatic but Asymmetric Exchange of Tax Information: the US Foreign Account Tax Compliance Act (FATCA) as Inflection Point

This article describes the most recent trends in the field of the international exchange of tax information and also pretends to guess whether the initiatives taken have lead to a more neutral, fair and homogenous global tax system. In particular it analyses the current OECD policy on international exchange of tax information, made under request and the recent international provisions setting up new mechanisms of automatic exchange of that information, either unilateral or bilateral. It also focuses on the new US Foreign Account Tax Compliance Act (FATCA), the subsequent Joint Statement made by the US Treasury and five European Countries and whether it represents an inflection point in the US and world policies of international exchange of tax information.