Peter Dunn, warning of the many issues with the Foreign Account Tax Compliance Act, has written a great article at American Thinker called “FATCA: A Ticking Time Bomb for the Economy.” Lawmakers clearly need to reconsider the law and its accompanying regulations and withdraw them before trillions are driven from the economy:
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.”
FATCA (Foreign Account Tax Compliance Act) is the brood of FBAR (Foreign Bank Account Report). FBAR requires that U.S. 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 U.S. 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 U.S. 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 its U.S. 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.
Let’s suppose that a foreign investor trades stocks on a U.S. 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 U.S. tax return.
No investor would accept such conditions. Hence, an FFI must either comply with the invasive regulations of FATCA or simply abandon the U.S. markets.
After some study, FFIs have warned that the costs of FATCA compliance will be in the hundreds of millions and likely in excess of whatever taxes that the IRS could gather through its enforcement (not that the IRS cares about that!). It is likely that many FFIs will simply choose to leave the United States, taking their clients’ money with them. In an open letter, “Farewell America,” Wegelin & Co., a private Swiss bank, cited their reasons for leaving the United States: excessive regulations, tax issues, and above all, the insolvency of U.S. government. Now add the expense of FATCA, and many other FFIs are going to follow Wegelin’s lead. American Citizens Abroad has cited Japanese and European FFIs as indicating a strong likelihood that they would pull out of the United States.
The only thing I would add is that this is not merely a bomb waiting to go off. FATCA is already doing damage, as FFIs are deciding every day whether or not they want to undertake the expensive burden of preparing to comply with the law.
