There's renewed energy in the ongoing campaign to repeal the US foreign tax law. But two global tax experts from PwC and Deloitte say it's unlikely that FATCA will be repealed.
Why was FATCA needed?
The Foreign Account Tax Compliance Act (FATCA) was signed into law by Obama on 18 March 2010, with the aim of helping the Justice Department and the IRS collect tax revenue more effectively and efficiently. The US treasury was losing more than $100 billion annually as a result of offshore tax non-compliance. But ever since its introduction, the legislation has come under fire for being costly and complex for foreign financial institutions (FFIs) to implement. Several bills have been introduced in the US to repeal FATCA but under the Obama administration, none have succeeded. With a new administration in the White House, there has been a renewed push to get rid of what some have 'called a “toxic global tax law”.
And despite reports in the media that the current campaign to undo FATCA will get a smooth passage through the US political system, some US tax experts are sceptical. Denise Hintzke, managing director and global tax leader at Deloitte Tax says: “There have been calls for FATCA's repeal since it was introduced in 2010. There might be upticks right now because whenever you see a change in government, it can be seen as an opportunity to introduce a bill and sway things.” Hintzke adds: “We've seen no clear indication that FATCA is likely to be repealed. In many organizations, FATCA has almost become business as usual.”
Why the wrath against FATCA?
The main objections to FATCA include accusations that it has “wreaked havoc on the global financial system”, that it violates the sovereignty of other countries and that it is damaging to the American and global economies. There have been reports that FATCA has made it difficult for US nationals to open bank accounts abroad.
Tax experts acknowledge that there is discontent with FATCA but argue that the main cost of implementing the new reporting regime was borne by FFIs, not individuals. In any case, many recognise that it was costly and burdensome to implement and that this begs the question of whether the results are proportionate with the effort and cost of implementation. However, for the US government, FATCA makes economic sense. Robert Bridson, FS tax partner at PwC, says: “Politically it was an easy sell – foreign institutions bear the costs and the US government gains information and revenue. If FATCA didn't exist, the tax bill for US residents would potentially go up, which would not be popular.”
4 reasons why FATCA will stay
Here are four reasons why the US will keep FATCA:
1. FATCA tackles offshore tax non-compliance
The US treasury was losing more than $100 billion annually as a result of offshore tax non-compliance and FATCA is going some way to tackle this. As PwC's Bridson points out, if the US government didn't recoup this tax, it would have to raise tax from other sources and this could mean taxing US residents more, which would not be politically popular.
2. Implementation already done
Critics of FATCA talk about the cost and complexity for FFIs of implementing the systems to report to the US government. The legislation has already been in effect for several years and the work to implement new compliance systems was completed before the 2013 deadline. FFIs have therefore already put in place the FATCA requirements, which built upon the previously existing AML/KYC requirements to identify account holders. PwC's Bridson says: “Financial institutions have now made significant strides towards implementing reporting capabilities to comply with FATCA. They have already gone through the pain, so to repeal it now would mean making these processes redundant.”
3. FATCA built on previous tax requirements
FATCA didn't introduce a tax reporting requirement that didn't previously exist. US citizens living in other jurisdictions were obliged to provide the US tax authorities with information on their assets and income abroad even before FATCA. However, FATCA introduced a steep financial penalty that is too significant to ignore: FFIs are required to withhold 30 per cent of payments made to FFIs, non-financial foreign entities and individuals that are not in compliance with FATCA requirements. Deloitte's Hintzke says: “US individuals overseas have always had responsibility to file US tax returns – if they see that this burden has increased, it raises the question of whether some people may not have been complying previously and now don't have a choice.”
4. Global trend is towards financial reporting transparency
Repealing FATCA would go against the global push towards transparency in financial reporting. The OECD's transparency agenda includes not just the Base Erosion and Profit Shifting (BEPS) initiative but also the Common Reporting Standard (CRS). More than 100 participating jurisdictions have now signed up under CRS to disclose whether assets or accounts are properly recorded for tax purposes. FATCA is very much in the same spirit of financial transparency as the CRS and to repeal it would seem like a step backwards.
CTMfile take: To sum up, the tax experts CTMfile spoke to don't see significant benefits in repealing FATCA and, while they recognised that it has caused mixed feelings and angst for some, it has introduced a reporting regime that, combined with the punitive withholding mechanism, is effective in creating tax revenue for the US government.
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