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Tuesday, October 8, 2013

Four Ways to Get FATCAed

Back at the family farm in my home country, the Pacific Northwest of the United States of America, my parents have a very helpful neighbor.  Let's call him Bob.

How helpful is Bob?  Well, when my parents have gopher problems  Bob drives over in his Cushman with his lawn chair, a couple of beers, and his .22 rifle.  And he sits out there in the sun until the little beasts pop their heads out to see what's up and then Bob blows them to pieces.  Pest control American-style.

Very entertaining for humans beings.  Not so much fun for the gophers.

If you are an American or a Green Card holder living outside the United States or an immigrant living in the US you might just feel that you have a lot in common right now with the gophers:  not only are you being treated as a particularly nasty little pest but  you've looked around and seen that some of your furry friends have already met the equivalent of Bob  through one of the American IRS "amnesty" programs.

Oh, but it gets better.  With FATCA (the Foreign Account Tax Compliance Act) those tax farmers in the U.S. have decided to start fires in the tunnels and smoke everyone out.  Makes for a terrible dilemma - you can hole up and die of asphyxiation or you can come out and risk getting your head blown off.

Some of you have already been FATCAed but for those of you who smell the faint odor of smoke but have yet to become intimately acquainted with the wrong end of a rifle, here are some indications that the air is about to become unbreathable.  This is what people are reporting to date and it's the local banks blowing the smoke on behalf of the United States:

1.  Bank Personnel Asking Questions:  You've been banking with the same local bank for years in France or Germany or Argentina.  You come in to do some business - cash a check, check your balance, pick up a debit card - or maybe they call you in to touch base about your accounts and suddenly you find yourself being asked some curious questions in a roundabout way:  We see that your mother is a US citizen - by any chance are you an American citizen too?  We see that you send money to the US - do you have a connection to that country?

2.  Questionnaires/Privacy Waivers:  You have just moved from the US to a new country where you have found your dream job and you try to open a local checking/savings account.  In response to your request, the bank hands you a questionnaire that asks things like:

Are you a US citizen? (answer "yes" even if you have other nationalities)
Have you ever had a Green Card?
Are you considered a tax resident of the United States (according to US law)?
Independent of the Substantial Physical Presence Test are you still living in the US?  (If you have left the US and do not intend to return you can reply "no" but this must be documented with proof of your current domicile).

You may also be handed a document that waives your local privacy rights.  In jurisdictions with strong personal privacy laws, banks cannot turn over your personal information unless you first sign away those rights.  You will be told that failure to sign will result in your accounts being closed.

3.  A W-9 Request:  You live outside the United States and the local bank sends you and your spouse (not a US citizen or Green Card holder) an IRS form called a W-9, Request for a Taxpayer Identification Number and Certification.

4.  Account Restrictions:  You are an American abroad with an account in the US and the American bank contacts you and says, "Sorry, but from now on the only thing we'll allow you to do with your retirement fund is sell."    No more buying or adding to that account.  If you live outside the US, we don't want your money.

So you go to the local bank in the country where you live (and where you deposit your paychecks) and discover that they too don't want your money.  "You're an American?"  Nope, not opening savings and retirement accounts for Americans anymore.  You do a web search and find that this is not all unusual.  Here are General Conditions for an account with Ing Direct here in France.  They will no longer open things like an "assurance vie" or other savings and investment accounts for "US Persons" (people who, it must be pointed out, may perfectly well be French citizens).

As for a French (or any other nationality) who becomes a "US Person," his accounts will be closed.  Ing says, "Par ailleurs, elle sera dans l’obligation de mettre un terme au mandat de courtage d’un Client devenu "US Person".

As for immigrants and foreign investors in the US, some of the reciprocity agreements (called "IGA's) the US has signed with other countries means that account information will be flowing out of the US as well.  This means that US banks have to do the same due diligence only they will be looking for those "German Persons" or "UK Persons."

A special warning here for immigrants living in the US and foreign investors:  This exchange of data means that your home country will know about your accounts in the US and the US will know about your accounts back home.  If you have not declared the accounts in your home country to the US government (and you probably were not aware that you were supposed to), the time to fix this was yesterday.  For those of you from countries where perhaps your parents or grandparents have added your names to their accounts, you might want to talk to them about that and make sure they understand that this could be a problem for you.  If you are caught, the fine for not declaring those accounts is 10,000 USD per year and you might just find yourself in a heap of trouble (the kind that gets you deported) if the US authorities consider your failure to file as "willful."

Where is this going?  Depends on the bank and the country but there's a very good chance that once you and your fellow "US Persons" been FATCAed that the bank will close some or all of those accounts.  For a lot of local banks inside and outside the United States "US Persons" or "German Persons" are not a large percentage of their client base and so it becomes a business decision:  Is the revenue the bank derives from those accounts worth the cost of compliance?  Clearly, time spent tracking actual and potential "US Persons" is time better spent doing other, more lucrative, things.

Welcome to the brave new world of FATCA where banking discrimination on the basis of national origin or a connection, however small, to another country, becomes simply another "good" business practice.

Banks in many different countries around the world have already made the calculations and decided to become "US Person-free" entities.  ACA and AARO have documented these cases. (Note to Treasury - contact these organizations ASAP before you come out in public again saying all this is a "myth."  It doesn't make you look good at all.)  I think it's safe to assume that this will continue as the deadline for FATCA comes closer.

Can anything be done about this?  Well, some folks have been working on it for a couple of years now and just lately the story is starting to get some traction in both the American and the local media.  That's progress.

You should be aware that you are not alone - FATCA is impacting millions of people around the world.   Every day more and more people are becoming aware of this via one or more of the rather unpleasant ways I've described above.  Some of them went into shock when they got FATCAed.  Case in point was a progressive college professor in Israel who thought FATCA was about catching "evil rich American tax evaders" and then learned that the US meant him when he got a note from his local bank.  Ditto for immigrants in the US who were never told they had a home country account reporting obligation to the US once they accepted that Green Card or H1-B Visa.  Welcome to the world of the gophers, mes amis.

So if I were asked, "What can I do?" I really only have one sure answer at this point:

Bark as loudly as you can.

Evangelize.  Witness.  Reframe.  Tell people what's going on and make it personal - this is what's happening to me and my family. FATCA is a very complex piece of legislation and people won't remember your explanation about the nuts and bolts of the law.  What they will remember is your tale of discrimination and despair and how it made them feel.

Barking serves two other important purposes:  1.  You are taking an active part in your own defense, and 2.  You are warning others which is a real service to them.

And if it all fails in the end?  Well, just keep in mind that even lowly unloved gophers can always take off and find another field.


Anonymous said...

... just keep in mind that even lowly unloved gophers can always take off and find another field.

That one.

I have 'barked' for years. When I present my own story of 'discrimination and despair' my friends and relatives are convinced that I must have got it wrong, think I am making it up, and start mentally measuring me for a tinfoil hat. You can see it in their eyes.

It is a major uphill struggle for anyone to see what is really happening. The US govt out-guns everyone and has the upper hand the broader PR spin war. They have successfully conflated foreign with offshore. Add this to their (and the mainstream media's) earlier conflation of offshore with illegal and... well here we are.

Christophe said...

"As for immigrants and foreign investors in the US, some of the reciprocity agreements (called "IGA's) the US has signed with other countries means that account information will be flowing out of the US as well. This means that US banks have to do the same due diligence only they will be looking for those "German Persons" or "UK Persons."

Well, this is not done yet. It's actually unclear what authority treasury currently has to transfer that kind of information without changes in current US law. Hence the request by Obama to Congress to allow FATCA reciprocity.
Not sure what the French government would do with my data anyway. I've never worked or paid taxes in France. But that brings the potential prospect of other cash strapped countries switching to citizenship based taxation, which is scary. The French have tried it and it never passed. Who knows if they'll try it again.
My fear is that with the current shutdown, debt ceiling circus here in the US, the republicans have just committed political suicide. I don't know if people will have forgotten for the mid term elections next year, and the democrats might well be getting the majority everywhere. Not that I think there are better, threatening a worldwide financial meltdown to get their way is despicable. But they are the ones reasonable on the FATCA front. If democrats win, there might be no political opponents to FATCA. I wished the republicans would have fought the FATCA war instead of the Obamacare war.
Right now, they're playing a dangerous game of chicken, with no sign of either party caving in. The next couple weeks are going to be interesting. Needless to say, we don't need all that drama.
I am so sad to see this country self destructing.

P. Moore said...

Here we sit in October and supposedly FATCA will be revving up its engines in 8 months. Does anybody believe it? Treasury has only 9 agreements signed (fewer are ratified by the various legislative bodies). The USG is in a state of paralysis and when they sort out their differences, they surely will be looking at more budget cuts. The IGAs are subject to legal and congressional challenges within the US. Surely the International financial services community as well as the US FIs are not in a reasonable position to comply and likely neither is the IRS (note the technological debacle going on with 'Obamacare' right now).

Also imagine if there was some attempt at true reciprocity in the US with its 10s of millions of 'foreign persons'. There would be chaos in the US FIs if there was any reasonable attempt to comply with that reciprocity. Further, I think the 30% withholding threat is a paper tiger. If the US started to withhold 30% on any reasonable scale, there would be real panic and damage to the capital markets in the US. Also, does anybody believe the IRS has the capacity to administer that and all the refunds and refund requests?

In the meantime, the accountants and lawyers are doing their best to legitimize FATCA because it is an obvious goldmine for them if they can 'help' everyone comply. Also, Victoria, as you noted, Treasury is making laughable claims about 'myths', which can only be directed at the ignorant and compliance industry allies. The gophers and others know full well what is really happening.

Lets not forget, there will likely be many court challenges in the US and other countries as implementation is attempted.

I think there are plenty more developments to come, but in the meantime the 'gophers' probably have to lay both offense and defense before they feel safe.

Victoria FERAUGE said...

@anonymous, I hear you and I've had the same reaction from friends and family back in the US. But haring barked and written and gone to public meetings and all that other stuff, no one can tell us we didn't try. Frankly, for me that means that if I do relinquish my citizenship, I will do so with a completely clear conscience. And then I can sit back and watch the show.

@Christophe, That's right you are at the heat of the action. Did you see that China just chastised the US for being irresponsible? What a mess.

You're right, of course, about the IGAs but I do have an indirect report that banks in the US are gearing up to comply. A little form that was presented to a friend of a friend in that part of the world where fields for FATCA info had been discreetly added. It will undoubtedly go unnoticed until the day FATCA goes live and the merde hits the fan.

@Patrick, Great comment. Yes, all true. There is an important question to asked in light of recent events: Given the US government's ability to keep itself running, why would any sane person or country allow them to run a worldwide system of information exchange?

Anonymous said...

My country of residence recently signed the IGA. Last week, my banker asked me about my citizenship status--as well as my husband's. He asked in an offhand, conversational manner, but still, it's the first time in 40 years they've shown an interest.

Is it paranoid to mull over this?

Victoria FERAUGE said...

No, you're not paranoid. We all need to be very vigilant. I know my behavior has changed because of this.

Yesterday my spouse met with our new customer service rep at our bank. I didn't go because I thought it wasn't a good time to pop my head up and be very visible. Just seemed prudent to let my spouse the French citizen be the front man here. And isn't that a sad thing?

What we all need right now (and I just say another conversation on Linked in with an American in Germany desperately looking for a place to put his money because his accounts got closed) is a LIST by country of banks that will take US Persons.

That would be one of the most helpful things that organizations like ACA and AARO could do for us right now. said...

"Bark as loudly as you can." NY Senators Charles Schumer and Kirsten Gillibrand sit respectively on the chamber's Finance Committee and Special Committee on Aging. Overseas NYers may number 1.5 million. And many are retired or pre-retired, hence constituents in terms of the Aging committee. Gillibrand herself comes to raise funds in Paris (her husband is a UK citizen), probably across the Channel as well.

On her Paris visit last year, her chief of staff was warned to expect questions on FATCA. "FATCA? What's that?" was his reply. (That's Jess Fassler.) So she raises funds from overseas Americans; probably Schumer doesn't refuse them. Shouldn't they be prime targets for barking…in particular from their constituents?

Janet said...

Shumer was the originator of the EX-PATRIOT Act which would deny Americans who renounced, for what maybe was tax reasons, the right to ever enter the US again. If there are really 1.5 million NY voters abroad, he might listen.

Greg said...

My country of residence is still a non signer to FATCA (there are fewer and fewer countries that fit into that group, unfortunately), but still my local bank is concerned about their American expat customers (in anticipation, I suppose). I have two accounts at the bank, one for my necessary retirement funds in order to maintain my visa (which I do not touch) and a small account I use for daily expenses. My Thai banker has asked me to consolidate and just have one account because they will have to report all my accounts to the thugs at the IRS, and they need to try and cut the paperwork. I am just nervous for the day when they way they need to consolidate to no accounts for Americans to save on paperwork. What a wonderful world it is to have the Internal Revenue Service following me clear on the other side of the world to make life difficult for me.

Victoria FERAUGE said...

@bcdparis, Good points. You know I am still surprised that the AARP hasn't got involved here especially since seniors were one group that was hit hard by the tax amnesty programs. These were older people with assets who didn't know about the reporting requirements. Perhaps they filed tax returns but didn't know about FBARs.

@Janet, All the more reason, I think, to get organized and to get the word. There are still people out there who don't know about this and some who are waking up but think they are the only one who didn't know. We need to reach out to them. Not to scare them but to see how we can help them (and by extension help ourselves).

@Greg, Wow. They asked you to CONSOLIDATE? Is that even possible?

And as you can see from today's post France has joined the FATCA crowd. More fun ahead...

leslie said...

My comment comes from a place completely outside the loop--I have no idea exactly what FATCA is, nor what its ramifications might be for my/our status as US citizens resident in western Europe (we've been here a year, just bought a house, etc). Where can I get the story from the beginning? And does anyone out there know of a USA-based financial advisor who's knowledgeable/helpful in sorthing through all this mess?

Victoria FERAUGE said...

Hi Leslie, Thank you for stopping by the Flophouse and for the comment. You are not alone - a lot of people are waking up to the FATCA/CBT nightmare. Just had lunch with one - he isn't a US Person but his daughter who just spent 9 months in the US is and recently came home to Europe is.

From what you say you are indeed impacted by FATCA.

Where to begin? I'd start here at the Isaac Brock Society with their FATCA Fact Sheet. Gives a good basic overview and suggest links to other resources.

Does anyone else have other places where someone new to this topic can get up to speed fast?

Patrick said...

I just found out about all this 12 days ago when the story re FATCA appeared on the BBC website. I have little contact with the States. My wife is British-born, as are my children. If I travel, I travel on my British passport (have I technically relinquished?).
No contact from my bank regarding this (yet). I stopped filing the forms (you know which ones) a few years ago. We were really, really struggling to cope with our son's disability and I couldn't deal with all the forms at the time, which always ended with 0. After that they stopped sending the forms and I forgot about all of it until all of this. I'm probably going to be really in for it now.

If my bank contacts me, my position is going to be that I am a citizen of the United Kingdom and that our laws prohibit discrimination based on national origin. Don't know if that will work. I imagine other duals are in a similar situation?

Coaster said...

We should call top Talk show like Coast To Coast AM (George Noory)

about this matter.

JSL said...

I have posted this - with my comments - in my blog of today. I then posted my blog to Facebook and will try and generate some on-going widening of the circle of knowledge.

Victoria FERAUGE said...

JSL Thank you!

I think I might post an updated version of this one since the closer we get to the go live date the more pertinent it gets.

Anonymous said...

What if I just unwittingly "FACTA'ED" myself? I'm new to all of this including filling for taxes abroad. My intention of doing the right thing before it all this FATCA really kicked in this past July, I contacted my bank to see what was necessary, if anything at all, for me to comply. They were unaware that I was a citizen of the U.S. Now I have to fill out heaps of papers and I might not even be able to keep my account. I've just shot myself in the foot!

Victoria FERAUGE said...

@Anonymous, Hell of a situation. So many of us are really flying blind here. What should we do? Talk to the bank? Wait for instructions?

I wimped out and asked my French spouse to ask the bank for me. The result of that conversation was interesting. She replied, "We don't know anything either. We have no instructions. We think someone is working on it. It's all very confusing."


Anonymous said...

This amounts to taxation without representation and it's unconstitutional, not that it's going to stop anything. Maybe a class action lawsuit against the "unfair law"... only dreaming of righting a wrong

Anonymous said...

Anon. We have also been FATCAd, my husbands bank sent us this w9 form to sign. A bank with a whopping 250 euro in it. No other money going in or out of that bank. Ok my problem, we have lived in Germany since 1993, myhusband is a German born American, lived in germany intil age 20 then went to states for 15 years then returned to germany. We have since bought a house, have no savings, only a few small retirement plans. We are both employed, myself on 400 a month job our yearly income is less then 40,000and we pay out taxes to
germany. I am really concerned, he wants to renounce citizenship but we havent filed a return to the us in those 23 years that we have lived here, to renounce he has to files 5 years , we do not have any money to pay for that .so we are really at the Berlin wall. The financial concequences to file are devistating, and the renouncing of citizenship costs are also. And to make things more exciting he has cancer. Any ideas on cheap legal info would be appreciated.

Victoria FERAUGE said...

Anon, For good advice and personal experiences on renouncing, check out the Isaac Brock Society in Canada.