EBF non-paper ‘FATCA and dual citizens’

The European Banking Federation (EBF) in February published a non-paper on FATCA and dual citizens, in which it proposes a solution to the problems caused by FATCA for Accidental Americans. Lehagre (French Accidental Americans) is positive, read his LinkedIn post, though he proposes to go further.

Text of the non-paper:

Non-paper FATCA and dual citizens
Exchange of information under Intergovernmental Agreements by EU member states

The dialogue between the EU Council and the United States Department of the Treasury on matters related to FATCA includes the position of EU financial institutions that serve customers that possess dual citizenship. These customers are resident in the EU and are citizens of an EU member state (EU citizens) and also possess US citizenship by reason of having a place of birth in the United States.

With this non-paper, the EBF would like to submit a suggestion that has the support of our membership for inclusion in that dialogue. The suggestion does not purport to be an all- encompassing solution to matters arising under FATCA but the EBF believes it could resolve a pressing issue for our membership and their customers. At the same time, the suggestion takes into account the valid interests of the United States with respect to the FATCA compliance efforts.

In essence, the EBF proposes that the U.S. competent authority clarifies in a Notice or otherwise that certain specifically defined accounts of EU residents with dual citizenship where the EU financial institution has not obtained a valid TIN or Certificate of Loss of Nationality (CLN), will not be taken into account when establishing whether there is significant non-compliance by that EU financial institution.

The EBF understands that for the United States, receipt of accurate U.S. taxpayer identification numbers (TINs) is instrumental to the Foreign Account Tax Compliance Act (FATCA) compliance efforts. At the same time, within the EU there is a need to find a solution for the conflicting requirements under FATCA (where EU residents with dual citizenship are faced with closure of their bank accounts due to compliance requirements for financial institutions under FATCA) and the EU Payments Accounts Directive [1] that is intended to ensure access to payment accounts.

The EBF believes that the FATCA-concept of accounts that present a low risk of being used by U.S. persons to evade U.S. tax is relevant here since it is unlikely that the relevant payment accounts that we are addressing were opened or are maintained with the intent to avoid US taxes.

Under this concept, there would not be significant non-compliance with the obligations under FATCA by reason of an EU financial institution having U.S. persons as accountholders and where the financial institution has not obtained a valid TIN (or CLN); provided that such accountholders have dual citizenship and are resident in one of the member states of the EU. It is intended that this group of accountholders is limited to residents of an EU member state that are EU citizens and with U.S. citizenship by reason of having a place of birth in the United States.

More specifically: in establishing whether there is significant non-compliance, the U.S. competent authority would not take into account reportable accounts of US individual accountholders when:
1. the accountholder is a citizen of an EU member state and a citizen of the U.S. by reason of having a U.S. place of birth;
2. the accountholder was identified under AML/KYC-rules with a passport of an EU member state or with an identity card issued by a public authority of the EU member state of residence;
3 the accountholder is resident for tax purposes in an EU member state;
4. the financial institution has not identified any other U.S. indicia (other than U.S. place of birth) with respect to that accountholder; and
5 the financial institution uses a specific code to populate the TIN field where the TIN has not been obtained in this specified scenario.

The EBF believes that this approach would neither result in relevant risks with respect to the FATCA-compliance program of the IRS nor frustrate the purpose of the FATCA reporting. When the IRS would observe abuse in the application of the framework at a specific financial institution, it could exclude such financial institution from applying the framework going forward.

Furthermore, it is explicitly confirmed that it is not intended that this approach would have any impact on the obligations and requirements of EU financial institutions in their role as Qualified Intermediary or US Withholding Agent.

[1] Directive 2014/92/EU of the European Parliament and of the Council of 23 July 2014.

Over Ellen Timmer, advocaat ondernemingsrecht @Pellicaan

Verbonden aan Pellicaan Advocaten, http://www.pellicaan.nl/, kantoor Rotterdam, telefoon 088-6272287, fax 088-6272280, e-mail ellen.timmer@pellicaan.nl ||| Weblogs: algemeen: https://ellentimmer.com/ || modernisering ondernemingsrecht: http://flexbv.wordpress.com/ ||| Motto: goede bedoelingen rechtvaardigen geen slechte regels
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