The threat of FATCA enforcement has impacted every jurisdiction in the world and the global financial industry is quaking with fear. The US Justice Department has taken the position that the entire non-US financial industry is potentially part of a continuing criminal conspiracy with some US individuals and multi-national companies to evade US income tax. The Justice Department has unilaterally forged ahead to obtain indictments and convictions over prominent foreign banks, bankers, and some of their US customers. The United States justification for claiming the moral high ground is that it is merely seeking to have all US taxpayers pay tax as required under US law.
A recent post by Eric on the Isaac Brock Society site began with:
Salman Nouman (Twitter: @ImFilmmaker), a U.S. citizen based in Dubai, recently tried to apply for a student visa to attend film school in Bollywood, only to find that the Indian government does not permit naturalised U.S. citizens of Pakistani origin to apply for Indian visas on their U.S. passports. In an Outlook India article about his experience, he mentions the reaction of the U.S. government when he asked them for help dealing with his problem:
The law firm of Henley and Partners notes that:
In today’s globalized world, visa restrictions play an important role in controlling the movement of foreign nationals across borders. Almost all countries now require visas from certain non-nationals who wish to enter their territory. Visa requirements are also an expression of the relationships between individual nations, and generally reflect the relations and status of a country within the international community of nations.
When it comes to international mobility citizenship matters!
There are two kinds of international mobility – coming and going – both are addressed in S. 6 of the Canadian Charter of Rights and Freedoms.
Mobility of citizens
(1) Every citizen of Canada has the right to enter, remain in and leave Canada.
I came across the article referenced in the above tweet. It is a truly incredible story. You are strongly encouraged to read this article. This guy is just trying to “mind his own business” (no pun intended). All of a sudden he learns that he might somehow be subject to U.S. jurisdiction. He has no idea why or how and he can’t get good answers. It’s obvious that his only solution is to sever every possible tie to the U.S. and to any U.S. person.
If #FATCA becomes fully operational, it will result in the following:
Step 1: Non-U.S. countries will (at their expense, whether IGA or otherwise) identify those people who the U.S. defines (a possibly shifting definition) as U.S. persons;
Step 2: Once identified the U.S. will use the existence of those “U.S. persons as the excuse to transfer a share of the GNP of that country to the United States on a permanent and increasing basis. In other words: FATCA is to enforce citizenship-based taxation which is a “forced tribute to the U.S.”
The reasons include:
I was not aware of this. Some of you may not be aware of it either. But a relatively new (about 5 years) provision of the Ontario Human Rights Code – S. 46 to be exact – makes citizenship based discrimination costly.
To be specific, a bank that discriminates against people based on citizenship or national origin could be forced to pay some damages. I became aware of this in a recent decision in the context of labour law.
Which brings me to another – hot of the press – incredible article about FATCA written by Professor Denis Kleinfeld, Of Counsel to Fuerst Ittleman David & Joseph PL, Miami, Florida:
The above tweet references one of the best articles I have seen on the interaction between international law, FATCA, citizenship-based taxation and intelligent public policy.