FATCA Repeal

Many people we help ask if there is hope for repealing FATCA and making their lives overseas easier.

Dateline: Tivat, Montenegro

In recent years, I’ve worked with a number of people who have already renounced, want to renounce, or plan to renounce US citizenship, particularly since I did so myself.

What’s interesting about US citizenship renunciants is that very few of them hate the United States. Not that many are even totally opposed to paying some taxes. What drives them over the edge is the byzantine tax code, reporting requirements, and total unfairness of the US system of citizenship-based taxation that requires them to file, report, and pay tax no matter where they live.

(Side note: if you’re new here, there are still plenty of ways to legally reduce your taxes by going offshore, even if you’re a US citizen… it’s just more complicated than for, say, Lithuanians.)

One couple I’ve been helping recently made their reasons for wanting to renounce crystal clear: they’re tired of the FATCA filing requirements.

What is FATCA?

In 2010, the US government passed a law that would effectively make every bank and “foreign financial institution” unpaid tattletales for the IRS. The goal was to root out so-called tax cheats with gazillions of dollars offshore; money that has so far not really materialized. If the banks failed to comply, they’d be slapped with huge penalties and effectively shut out of the US financial system.

If you’re unfamiliar with FATCA and how it works, you can read this Ultimate Guide to FATCA.

What has happened since is that numerous banks refuse to accept US citizens for anything from a simple bank account to a home mortgage. Many banks in countries like Switzerland flat out refuse to deal with US persons under any circumstances, even if they actually live in Switzerland. My research team recently spoke to one bank in Liechtenstein that refuses to even accept FORMER US citizens for fear of being penalized.

The people hurt by FATCA aren’t offshore tax cheats; their ranks are largely made up of workaday expats who just want a bank account. My friends’ ten-year-old daughter can’t even get a passbook savings account where they live in Europe.

While we help US citizens open foreign bank accounts all the time, it’s become far more complicated and the game is constantly changing.

How to Handle FATCA

Naturally anyone who lives overseas – whether as an expat employee or a Nomad Capitalist looking to “go where they’re treated best” – would be concerned about the implications of FATCA.

Unlike citizens of just about every other country on earth, so-called “US persons” can’t escape FATCA simply by moving overseas. And if you don’t file, the penalties can be hefty, ranging from civil to criminal penalties that start with five-figure sums and work up to half or more of the value of your entire accounts.

Not only do you need to complete the bank’s paperwork correctly, you’ll also need to fill out IRS forms with your foreign banks. You’re also required to file an FBAR – a foreign bank account report – each year on time, along with potentially other forms. Not doing so could be ruinous.

This article is not intended to provide you with tax advice, but to point out why so many people who want to live overseas are considering the only way to FATCA-proof their lives: giving up their citizenship.

While my reasons for renouncing were largely personal, I can’t say that I miss filing stacks of paperwork each year. What I can say is that I personally understand just how emotional a decision renouncing is, and why many people try to avoid it if at all possible.

The only way to avoid FATCA is to keep all of your banking and financial affairs within the United States. That may be worth considering for some expat employees, but here at Nomad Capitalist, we believe that being at the whim of only one country is a terrible way to diversify.

With that said, the next question is: “Do you expect a FATCA repeal? Is it possible FATCA filing requirements will be eliminated?”

My answer is a confident “no”.

Why the FATCA News Isn’t Good

While I respect the handful of tireless crusaders seeking to eliminate not only FATCA, but also the practice of extraterritorial taxation of US persons, I don’t buy into the seemingly endless and ballyhooed claims that an end to FATCA is right around the corner.

That’s because attitudes toward going offshore, legal tax reduction, and going where you’re treated best are getting worse, not better.

The political party that is supposed to stand for lower taxes, smaller government, and individual liberty has taken on a mantra of “America First”, where foreign investment is discouraged through the tax system and by other means.

The opposing political party, on the other hand, is ramping up its tax-and-spend policies while claiming the wealthy don’t pay enough and threatening new penalties against anyone who doesn’t want to pay up.

Simply put, there is little room in this equation for positive change for expats.

Having spent more than a decade traveling to more than 100 countries and living in quite a few, there is no country where the idea of leaving is viewed with such hostility as the United States. It’s simply in the DNA.

That could be because, unlike Europe, the United States is relatively isolated. It might also be because most US persons don’t travel much, and even having a valid passport is seen as a sort of accomplishment. Whatever the reason, this cultural conviction pre-dated Trump and pre-dated the progressive wing of the Democratic Party.

My team probably couldn’t count the number of times some uninformed American commented “If you don’t like it leave!” only to find out I actually did leave and then call me a “traitor”.

When I meet expats from the UK, Australia, Canada, and other parts of the high-tax developed world, they tell completely different stories of their friends supporting their overseas moves, even when those moves were to tax-free countries like the United Arab Emirates. Instead of saying “how dare you?”, their countries said “good for you; please spread our values”.

This is a totally different attitude than the United States. I recall once having a conversation with a bureaucrat I happened to meet; upon politely mentioning that filing a tax return the size of a small-town phone book was a bit burdensome, he all but exploded on me.

Sadly, he’s not the only way getting his way.

FATCA Started a Trend

More importantly than the culture is the simple fact that the world is becoming increasingly transparent. Nudged by the introduction of FATCA, the OECD – the lobbying mafia for high-tax countries that don’t like competition – helped roll out the Common Reporting Standard, or CRS. Under CRS, about 100 countries now engage in automatic information sharing.

CRS is FATCA: Global Edition.

FATCA has inspired the rest of the world to continue their march toward transparency. And while I believe in your freedom to keep more of your money, transparency isn’t a bad thing. If you want to live in the United States, one could argue you’re agreeing to live by their laws and you should be liable to report and pay tax on your foreign bank accounts.

The issue is that the march toward transparency has ensnared those who wish to leave the system, but can’t. Those people are voiceless constituents who are too few in number to matter, and too controversial at home to avoid being used for political points.

As long as politicians on both sides of the aisle can blame “greedy offshore tax cheats” and score political points from an increasingly desperate populace that sees stagnant wages and social unrest as its future, they will.

Like any empire, the United States will continue to stick it to the voiceless until it is no longer an empire. And despite the claims of the “doom and gloom” crowd since the 1970s, the US dollar won’t become toilet paper, nor will the United States itself fall tomorrow.

That is why I believe FATCA repeal is something doomed to never happen. Whether fair or not, you must govern yourself according to the principle that you can “go where you’re treated best”, whatever that may mean for you; the US government won’t ensure you’re treated best.

Andrew Henderson

Andrew Henderson is the world's most sought-after consultant on legal offshore tax reduction, investment immigration, and global citizenship. He works exclusively with six- and seven-figure entrepreneurs and investors who want to "go where they're treated best". He has been researching and actually doing this stuff personally since 2007.
Andrew Henderson
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