politics

FATCA: A Ticking Time Bomb for the Economy

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The following article appeared in the American Thinker this morning:

FATCA: A Ticking Time Bomb for the Economy

Peter W. Dunn

Buried in an ostensible jobs bill signed by President Obama last year is a little-noticed job-destroying government regulation that threatens to trigger a massive outflow of capital from the American economy.

The US economy is in bad shape.  Many want the federal government to fix it — to end the deficits, create jobs and get America back onto the track of growth and stability.  President Obama came to Washington with great promises: to restore international respect for the United States and to bring back the jobs.  When signing the HIRE Act of 2010 on March 18, 2010, President Obama said:

A consensus is forming that, partly because of the necessary — and often unpopular — measures we took over the past year, our economy is now growing again and we may soon be adding jobs instead of losing them. The jobs bill I’m signing today is intended to help accelerate that process.

Now the HIRE Act of 2010 contains a time bomb called FATCA (Foreign Account Tax Compliance Act), which has indeed accelerated a process. Unfortunately that process is not job generation but job destruction caused by an exodus of capital from the United States.  Investment means jobs; a departure of investment capital means job losses.  Thus, the HIRE Act is really the “FIRE Act”.

The Background of FATCA and FBAR

FATCA (Foreign Account Tax Compliance Act) is the brood of FBAR (Foreign Bank Account Report).  FBAR requires that US persons divulge foreign accounts to the Treasury Department, but few knew about or ever complied with it (see When Government turns Predator).  To stanch the bleeding of US capital into secret bank jurisdictions like the Cayman Islands and Switzerland, Congress introduced FATCA into law as part of the HIRE Act.  FATCA requires that Foreign Financial Institutions (FFIs) reveal the accounts of US persons to the IRS.  The FFIs will then have to collect tax withholdings for the IRS from these clients.  If by January 1, 2014 the FFI is unwilling to reveal their US clients’ accounts, the IRS will impose a punitive 30% withholding on all payments to the FFIs, on dividends, interest and gross sales of stocks, bonds, and financial derivatives.

A sample transaction

Let’s suppose a foreign investor trades stocks on a US exchange, but his broker is FATCA non-compliant.  One day he buys 10,000 shares of XYZ at $25 per share, and the next day, he takes advantage of a nice uptick of $1.00 in XYZ and sells at $26 per share.  He makes a tidy profit of $10,000.  But because his broker is non-compliant, the IRS now withholds 30%, not of the profit but of the gross proceeds of the sale!  So the client now receives the sum of $260,000 minus 30%.  The foreign investor is unhappy because his $250,000 investment has become $182,000.  If he wants his money back, he must file a US tax return.

No investor would accept such conditions.  Hence, an FFI must either comply with the invasive regulations of FATCA or simply abandon the US markets.

Continue reading →

FATCA will violate the Ontario Human Rights Code

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This morning has appeared my article on FATCA at the American Thinker:  FATCA: A Ticking Time Bomb for the Economy, which I will be posting here later as well.  Thanks American Thinker for publishing this and thanks for helping us sensitize readers about what we US expats are going through.

There is now quite another reason to think that FFIs cannot implement FATCA:  It is a violation of the Human Rights Code.  Renounceuscitizenship reminded me of this particular legal argument.  I had commented the following:

The Canadian government has to do something. You can’t simply allow another country to come in and pick your citizens’ and residents’ pockets. It is a theft and a threat to Canadian sovereignty. It is a casus belli.

But furthermore, if the US were to go and occupy Canada and force its citizens to pay tribute, that would be one thing. That would be a consequence of losing a war to a hostile country. But I thought that the US and Canada are allies. You don’t treat your friends this way, only your conquered foes. Obama is a disgrace. I am utterly disgusted by this government.

Renounceuscitizenship responded:

Agreed. In addition, there is the issue of FATCA and the Canadian banks. The Canadian banks should take a principled stand and not comply with FATCA. Compliance with FATCA is completely optional. If the Canadian banks comply it is because they have made a decision that profits are more important than principles – unless of course the only principle is profit.

To turn over client information to the IRS based on citizenship is arguably a violation of Canadian (Federal and provincial human rights legislation). The Ontario Human Rights codes prohibits discrimination based on citizenship.

Here is what the Ontario Human Rights Code reads in relation to discrimination in relation to services:

http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90h19_e.htm

Preamble

Whereas recognition of the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world and is in accord with the Universal Declaration of Human Rights as proclaimed by the United Nations;

And Whereas it is public policy in Ontario to recognize the dignity and worth of every person and to provide for equal rights and opportunities without discrimination that is contrary to law, and having as its aim the creation of a climate of understanding and mutual respect for the dignity and worth of each person so that each person feels a part of the community and able to contribute fully to the development and well-being of the community and the Province;

And Whereas these principles have been confirmed in Ontario by a number of enactments of the Legislature and it is desirable to revise and extend the protection of human rights in Ontario;

Therefore, Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

PART I
FREEDOM FROM DISCRIMINATION

Services

1. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability. R.S.O. 1990, c. H.19, s. 1; 1999, c. 6, s. 28 (1); 2001, c. 32, s. 27 (1); 2005, c. 5, s. 32 (1).

Obviously a competent lawyer is required to frame the arguments, but I would expect any Canadian bank that starts reporting information to the IRS based on the citizenship of an individual, would and should be hauled in front of the Human Rights Commission to seek a remedy. What remedy? This seems to be in S. 46

Civil remedy

46.1 (1) If, in a civil proceeding in a court, the court finds that a party to the proceeding has infringed a right under Part I of another party to the proceeding, the court may make either of the following orders, or both:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect. 2006, c. 30, s. 8.

The banks will have to choose between obeying a U.S. law (and kowtowing to the IRS) or obeying the law of Ontario. They are caught between a rock and a hard place. Surely, it should be made more expensive for the banks to violate the rights of Canadians than to disobey an attempt to by the U.S. government to extend its law into other countries.

Yes, I agree that it is time for the Government of Canada to get involved and put its foot down. The fact is that: nothing less than Canadian sovereignty is at stake here!

Others have made this argument at the Canadian Expat Forum, but I hadn’t actually seen the wording of the Ontario Human Rights Code, which would clearly forbid banks from discriminating against clients because they are citizens of the US, as FATCA requires.  Indeed, Canadian banks will have to choose between the laws of Ontario (and Canada) or the laws of the United States.

Guest post: The IRS–Your health, your wealth and your life

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The IRS: Your health, your wealth and your life

by RenounceUScitizenship (used with permission)

The IRS has had a huge impact on your health, your wealth your life.

Your Life

I  came across a news article that started as follows (Vancouver Observer):

Several weeks ago, my brother sent me an article from the Financial Post — and my life changed in an instant.

My brother and I were born in the United States, but we left as teens. I have lived and worked in Canada for close to the last four decades, as a proud Canadian citizen.

The article talked about the fact that the U.S. is the only country in the world that taxes its citizens who are neither living in the U.S. nor working there. Even if American ex-pats are not earning an income there, the U.S. government is still able to tax them.

But it gets worse –- in its supreme arrogance, because our neighbor to the south is broke and in considerable debt, it is now bullying folks like me, by laying down the law saying that all of its citizens must pay U.S. taxes, regardless of the circumstances. And if any non-resident citizens choose to be ‘non-compliant’ and not file up to several years of back taxes, they could be punished by facing stiff fines of up to 25% of their entire financial worth, and maybe even go to jail. The jackbooted tone of the warning was clear. The IRS meant to scare –- and it worked.

There are many U.S. expats who are still not aware of FBAR, FATCA, OVDI, and the like. Those who became aware of these things are unlikely to forget the day, the moment, where you were and how you learned of it. From the moment that you learned of these things, your life was irreparably changed. The vast majority of U.S. expats were and are law abiding citizens.

Furthermore, it is likely in terms of their self  images that they:

–        Thought of themselves as law abiding, honest people

–        Had done their best to be tax compliant and law abiding

–        Were loyal patriotic Americans

–        Were and are fair minded people who could not conceive that the U.S. government could behave in such an immoral and “irresponsible and unreasonable” way (Apologies to Ambassador Jacobson)

From the moment they became aware of this IRS nightmare, it is likely that they:

–        Felt frozen, scared and confused (like a deer in the headlights)

–        Felt a strong sense of having been betrayed

–        Were unable to obtain any consistent, reasonable and clear advice about what to do

–        May have been pressured to enter OVDI

–        Did not have the money to pay the legal and accounting fees to even begin compliance

–        Would never have had the money to pay any penalties

–         Find it hard to believe that they are being treated as though they are criminals

 After the dust had begun to settle, on  the “Economic Front” it is  likely that may U.S. expats  realized that:

–        “U.S. citizenship was a problem to be solved” (to use the words of Phil Hodgen) and that the only way to solve it, was to renounce.

–        Barrie McKenna of the Globe and Mail likened the rift to “divorce”

–        U.S. citizenship presents a clear and present danger to the financial health of you and your family

Your Health – From the perspective of their emotional and physical health, there is no doubt:

–        The “jackboot” behavior of the IRS has severely damaged the physical health of many U.S. expats. After all, how much stress and worry can a law abiding citizen take?

–        The sense  of betrayal, unreasonableness, and unfairness  has created tremendous emotional and psychological problems for those affected by this. The shock of 2011 has been severe – it is likely that many U.S. expats will need psychological counseling if they are ever to recover. This is another aspect of the “collateral” damage associated with all of this.

My unprofessional but (I hope practical advice):

1.  This is not YOUR FAULT – you have done nothing wrong. Even if you are violation of the FBAR law, you have done nothing wrong in a moral sense. As you now know, there is no relationship between law and morality.

2. You are shocked to find that the U.S. is not the country that you thought it was. You believed that the U.S. was that “great citadel of freedom and justice”. ‘That’s what the country was – that is how you remember it. You are finding it hard to believe that you were wrong. You feel that you were deceived, conned, lied to, misled. That’s partially true. The reality is that the U.S. is no longer the country that it was. The U.S. under the Obama administration is nothing more than a vicious, debt ridden thug. The U.S. has evolved from being a nation of laws to a nation of forms.

3. If you are a U.S. patriot you feel betrayed – you feel that your patriotism is being tested. A  U.S. patriot has allegiance to the ideals and constitution of the United States of America. This is different from an allegiance to the U.S. government of the day. If the government does not respect the constitution, then the most patriotic thing you could do may to renounce your U.S. citizenship.

4. Although your first instinct may to run and hide – you do need to deal with this situation.  The problem is that you don’t know how to deal with it – you can’t find consistent, reliable advice. You are required by law to file a tax return, and FBAR and the new (for 2011) son of FBAR  form. Although this is not legal advice – common sense dictates that you should (at least) be compliant on a “going forward” basis.

5. Those of you who are U.S. Canada dual citizens should familiarize yourself with the provisions of the tax treaty in regard to reporting penalties. You will be happy when you investigate this.

6. Your tax and reporting issues are dependent on your decision to remain a U.S.  citizen. No two people are the same. U.S. citizenship is a problem to be solved. What are the principles that should be utilized to solve it? What are the questions to ask? You have been betrayed by the U.S. government. The U.S. is not the country it was. The U.S. does not subscribe to the very ideals that are the basis of your patriotism. This is a decision that must be based on principle – the question is: what is the right principle to make the renunciation decision? You have been betrayed by the U.S. My advice: make this decision based entirely on what works for you in your particular life circumstances. Recognize that you cannot predict the future with accuracy. There is no decision where there is no possibility of regret.

7. The “what is good for you principles” for you should recognize that:

–        The reporting requirements of FBAR, FATCA, etc. could put a serious strain on your marriage (the non-American spouse may be unwilling to live with the IRS);

–         Remaining a U.S.citizen may make it difficult you to avail yourself of normal banking arrangements;

–         Remaining a U.S. citizen will make it harder for you invest and save for retirement in your country of residence;

–        Remaining a U.S. citizen will force you to spend lots of time and money on reporting requirements. Remember the U.S. is now a nation of forms. Can you even afford the cost of compliance?

–        Remaining a U.S. citizen will force you to live in constant fear of the IRS

–        Remaining a U.S. citizens means that if you ever do accumulate wealth you will be subject to the U.S. estate tax rules (I have no idea how this would coordinate with the death tax rules of other countries)

–        If you have less than two million of net worth you are not a “covered expatriate”, you can (and possibly should) divest yourself of U.S. citizenship before you hit the two million mark (it is not uncommon in Toronto or Vancouver to own a house that is worth more than one million dollars)

–        If you have a net worth of two million or more, you will have to pay an exit tax if you renounce your U.S. citizenship. Remember that what you pay now, will be a savings to your estate. You can pass more money and assets to your children.

–        And now to the only positive of retaining U.S. citizenship: you can go back and live and work in the U.S. Is it worth it?

Your Wealth

Your wealth is only one factor in the equation. That said: for many U.S. expats the financial cost may be less to renounce now, rather than later. Think of your children.

A Final Thought

You have been placed in a horrible situation that is not of your making. Remember the bright side: as an expat you and (presumably most of your money) are already outside the United States.  After January 1, 2014 (the day FATCA takes effect) it will be very difficult for U.S. residents to leave. You are blessed with the wonderful opportunity of being able to live where you want. It is interesting that the U.S. constitution guarantees neither a right to enter the U.S. nor a right to leave the U.S. The Canadian Charter of Rights guarantees Canadian citizens the right to both enter and to leave Canada. In 1982, I was puzzled by this provision. I now understand why the constitutional right to leave a country is important!

In closing, read the following comment which describes how the participation in the OVDI program has completely transformed the life, health and wealth of this U.S. expat. Do you need the protection of the U.S. government or do you need protection FROM the U.S. government?

 “Just Me said…
Continue reading →

Are the markets safe? “No!” say Gerald Celente and Ann Barnhardt

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Gerald Celente speaks out about how Global MF stole his cash position and how he was issued a margin call for his cashed covered futures contracts.

Now Ann Barnhardt has closed her brokerage firm which traded on the commodities market saying that these market are no longer worthy of her clients trust (Hat tip:  Monty Pelerin):

BCM HAS CEASED OPERATIONS 

POSTED BY ANN BARNHARDT – NOVEMBER 17, AD 2011 10:27 AM MST

Dear Clients, Industry Colleagues and Friends of Barnhardt Capital Management,It is with regret and unflinching moral certainty that I announce that Barnhardt Capital Management has ceased operations. After six years of operating as an independent introducing brokerage, and eight years of employment as a broker before that, I found myself, this morning, for the first time since I was 20 years old, watching the futures and options markets open not as a participant, but as a mere spectator.The reason for my decision to pull the plug was excruciatingly simple: I could no longer tell my clients that their monies and positions were safe in the futures and options markets – because they are not. And this goes not just for my clients, but for every futures and options account in the United States. The entire system has been utterly destroyed by the MF Global collapse. Given this sad reality, I could not in good conscience take one more step as a commodity broker, soliciting trades that I knew were unsafe or holding funds that I knew to be in jeopardy. Continue reading →

When government turns predator

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The following article appeared first at the American Thinker on April 5, 2011, then at Monty Pelerin’s World.  Monty Pelerin is a retired economist who writes under a pen name.  In March, I approached Monty asking if he would publish under his pen name an article on FBAR.  He agreed and then we co-wrote the article and he kindly gave me no credit because I feared the long arm of the IRS.  Then, Monty submitted it to the American Thinker.  Now that I am out in the open with my IRS concerns, I’ve decided I can reproduce it here.  So I want to thank Monty for his extraordinary help when nearly no one in the mainstream media or even conservative blogs were talking about this injustice which the IRS has afflicted upon millions of Americans.

When government turns predator, by Monty Pelerin

Honest US citizens are being turned into prey by the IRS, the victims a hunt for tax evaders. It is the natural, if lamentable, product of the urge to power our Founders warned us against.

More than two centuries ago, George Washington stated:

Government is not reason; it is not eloquent; it is force. Like fire, it is a dangerous servant and a fearful master.

Over the years, General Washington’s prescience has been demonstrated as government usurped and abused power. The myth that government serves the people should be shattered by now. Increasingly, government behaves as the master, not as the intended servant.

Oppression abounds, but nowhere is the raw abuse of power and coercion more possible and evident than in the Internal Revenue Service. They are the most dangerous member of the government gang. Now they have another tool to bully and expropriate wealth from innocents — US citizens living abroad.

Early in his presidency, Barack Obama pledged to add 800 new IRS agents to punish tax evaders with overseas accounts. In an effort, presumably designed to curtail and punish tax evasion on the part of wealthy Americans, legislation aimed at criminals now threatens the income and savings of the law-abiding.

Background

The Bank Secrecy Act became law in 1970 and implemented the Foreign Bank Accounts Report (FBAR) to monitor money laundering. The FBAR law required that US persons owning or having signing authority over foreign bank accounts report this information to the US Treasury Department. It was not much enforced for the obvious reason that a criminal does not willingly divulge incriminating information. During the first three decades of FBAR, there was widespread ignorance and disregard for the law.

In 2003, the Treasury Department handed over enforcement to the IRS. In 2004 non-willful non-compliance increased to a $10,000 fine per account per annum. Willful non-compliance allows criminal charges, a prison sentence, and fines of $100,000 or 50% of bank account’s contents, whichever is more (see Shepherd, p. 10).

The IRS has implemented two Voluntary Disclosure Programs I (2009) and II (2011), in which they waive criminal charges provided that all back taxes and penalties have been paid, along with an FBAR penalty of 20% (in 2009) or 25% (in 2011) of the account’s highest balance over the last six years. The penalty is lower (12.5%) for balances under $75,000. Persons who were unknowingly US citizens face a 5% penalty (see FAQ 52).

In 2010, Congress passed FATCA (Foreign Account Tax Compliance Act) which forces foreign banks to report on American clients, even if doing so would violate the banking and privacy laws of their country. Implementation of FACTA will be coerced by withholding 30% of US income from banks not in compliance.

The arrogance and brutality of the legislation is apparent. The penalties are severe and disproportionate. Economic blackmail of foreign banks is disgraceful. All of these actions will have repercussions, probably not intended.

US Citizens Abroad

US citizens living abroad must open a foreign bank account because commerce is done in the local currency. All who do are potentially in violation of the FBAR law. Most were unaware of the FBAR requirements; but now that the IRS has rattled its FBAR saber, taxpayers abroad are in a quandary.

Wealthier citizens spend thousands of dollars on accountants and tax lawyers to try to put themselves into compliance with the least financial damage. The average citizen not in compliance has limited options. His choices include:

  1. Do Nothing The IRS doesn’t know about you, so continuing to keep a low profile and ignore the law might be the best route. This option may become impossible once FACTA comes into force.
  2. File FBAR Forms IRS FAQ 17 of the 2011 Voluntary Disclosure Program states that filers who have complied with all taxes and filing requirements except FBAR should not enter the program but simply file the delinquent forms by August 31, 2011 with a letter of explanation. They promise that no penalties will apply to such persons.  But given the severe threats of punishment issued to anyone failing to comply, many wonder whether the IRS will accept the excuse of ignorance of the FBAR requirement.
  3. Enter 2011 Voluntary Disclosure Program:  Some US citizens who entered the 2009 Voluntary Disclosure Program and were otherwise in compliance with US tax laws, found that the IRS intended to apply to them the full 20% penalty (see, e.g., hereand here).
  4. Renounce Citizenship Many US citizens living overseas have lives fully integrated into their new country. They comply with the local tax laws and often possess dual citizenship.  Compliance with US tax laws and FBAR are a nuisance and liability that they may be able to live without.

Renunciation of citizenship is not riskless. Such a decision will set citizens free from future liability, but may subject them to IRS penalties for prior non-compliance. In addition, for covered expatriates, those having two million in assets or $145,000 in average annual tax liability over the last five years, an exit tax is also required.

To appreciate the uncertainty and duress faced by US citizens living abroad, a couple of hypothetical situations are useful. International tax lawyer Phil Hodgen partly inspired the following hypothetical cases:

Hypothetical Case 1:  Jim lives in a foreign country and has dutifully filed a US income tax return each year, but was unaware of FBAR filing retirements. Jim operates eight accounts:  four retirement accounts (which he reported on his annual tax returns), two trading accounts, a checking account and a high interest savings account.  The highest balance in these accounts is $1,000,000 over the last six years. His current balance is $800,000 after the market dip.

Jim doesn’t know what to do. After great worry, he enters the Voluntary Disclosure Program. The IRS assesses Jim a $250,000 FBAR penalty. In order to pay the penalty, Jim must withdraw funds from his retirement accounts forcing an additional tax liability of $100,000 on the income. Jim is no longer able to retire because his $800,000 has been reduced to $450,000, solely as a result of IRS capriciousness.

Hypothetical case 2:  Nancy is a teacher and mother of three, married to a citizen of the foreign country where she has lived for fifteen years.  She dutifully filed her taxes in the US, but never knew about FBAR. A friend entered the Voluntary Disclosure Program and was assessed $14,000. She contemplates the renunciation of American citizen, because her foreign husband owns a successful business and Nancy is a signer on business accounts. She fears exposing her husband’s business to the IRS and also fears that upon her death, the IRS will seek its pound of flesh from her estate. She renounces citizenship, though it breaks her heart.

Abuse Of  the Law

FBAR was initially a harmless and little known embarrassment for the United States. It began as an ineffective attempt to stop money laundering. Like so many other laws (RICO, Homeland Security, etc.), it began with what some believed noble purposes, only to morph into a tyranny imposed upon law-abiding citizens. It is now a tool capable of arbitrary and oppressive expropriation of the wealth of millions of US citizens living abroad.

An insolvent government is a dangerous government. It is akin to a wounded and cornered animal. When conditions become really difficult, it is likely to do anything to survive. Arbitrariness in the interpretation of any law is dangerous to freedom, but especially so when government’s primary concern is survival rather than justice.

There are many reasons to be critical of FBAR. The following two will illustrate:

  1. Excessive fines: Ayn Rand said “The severity of the punishment must match the gravity of the crime.” This basic principle of human rights, enshrined in the Eighth Amendment, forbids excessive fines. It is immoral for the IRS to intimidate innocent citizens. Any law so uncertain that it could result in a loss of 50% of your wealth, depending upon the whims of the IRS, is not a law. It is government-sanctioned extortion.
  2. Guilt Presumed:  The Fourth Amendment protects (or was supposed to) citizens against arbitrary fishing expeditions by government. Probable cause is required. The FBAR requirements circumvent this Fourth Amendment right, in effect saying: “You will volunteer to open the door to your house and let us look inside.  If you don’t, we will fine and/or imprison you.” The IRS demands bank information based on a presumption of guilt even though holding funds in a foreign bank account is no crime.

Unintended Consequences

The term unintended consequences, a convenient euphemism for stupid policy or law, is appropriate. Some of the foreseeable outcomes are the following:

  1. An avalanche of US persons will renounce their citizenship. In July 2010, the State Department implemented a $450 fee for making a renunciation before a consular officer, presumably to exact additional income and possibly (highly unlikely) deter some from making the decision.
  2. Foreign banks and investors may decide doing business with the US is not worth the trouble of compliance with FACTA, particularly as the US economy collapses and the global economy shifts to the East.
  3. US Citizens abroad already find it challenging to open bank accounts both in US and in their countries of residence. This annoyance makes it more difficult for American companies and their employees to engage in foreign missions, business and trade.
  4. US citizens are already shunned from positions in foreign companies which do not want their banking details revealed to the United States Treasury Department.

Conclusion

The Bank Secrecy Act, passed in 1970, is an example of law designed for one purpose being expanded to be used against innocent citizens. Regardless of its good intentions, it is now a tyranny used to extort wealth from otherwise legal, law-abiding US citizens living abroad.

It represents a classic case of how government usurps freedom. What level of morality must government have to think they are entitled to shake-down hard-working citizens?

Monty Pelerin has never lived abroad or had a foreign bank account. He has friends who do and hopes that exposing this State plunder will cause it to cease in this and other parts of our lives.