The Belgian Data Authority has placed a halt on transfers of information on financial assets (and bank accounts) held by Americans to the IRS under the Foreign Account Tax Compliance Act (FATCA).
The Belgian DPA found that information transferred under FATCA was not protected by Article 96 of the GDPR – which allowed transfers under existing agreement in place (such as FATCA) when GDPR came into effect (2018). Specifically, the DPA found that transfers under FATCA were not for a specific purpose (too general), nor proportionate, nor sought to minimize data.
The Belgian DPA decision (24 May 2023) may be appealed.
The Irish Data Protection agency is also reviewing FATCA compliance with EU law.
In 2021 the Irish Data Protection Commissioner indicated, to the Association of Accidental Americans – the successful litigants in the Belgian DPA case, that they were engaging with the appropriate authorities to ensure Ireland’s FATCA transfers were in keeping with EU law.
Both Ireland and Belgium have similar Model 1 FATCA Agreements with the U.S., each in effect from 30 June 2014.
We think that even if the decision is affirmed upon appeal that a way will be found to allow FATCA transfers to continue. In the United States taxpayer confidentiality is protected under section 6103 of the Internal Revenue Code – which is one of the longest and strongest part of the Code. The Belgian DPA decision is partly based upon the non-specific purpose of FATCA – but that may lie with the IRS not yet working through the data or beginning to go after U.S. taxpayers in Europe. The exchange of taxpayer data is too important as a tool combatting tax evasion.
Anecdotally the IRS has been overwhelmed with the amount of information they have received under FATCA and have struggled with funding and resources in the past. Under the Inflation Reduction Act the IRS has been awarded some $ 80 billion in additional funding and is hiring 87,000 extra agents. The IRS indicates that FATCA compliance is one of its key campaigns for 2023 and beyond.
In the period 2010-2020 the IRS has spent some $574m implementing FATCA and has collected $14m in additional taxes – in contrast to an initial target of $ 8.7 billion per year in additional taxes.
Recent research has indicated that as of 2018 some $4trillion dollars in overseas financial assets are held in 4.5m foreign accounts by 1.5m US taxpayers in 190 countries. About half of this $ 4 trillion is deemed to be held in tax havens and skews heavily to more affluent taxpayers.
This data was gathered from bank returns made under FATCA.
- Given the amounts ($4trillion) disclosed under FATCA it is hard to see the IRS allowing this to end
- The OECD Common Reporting Standard (CRS) was leveraged from FATCA – so if this decision stands it may have implications beyond FATCA
For each year since 2014 Irish banks and financial institutions have transferred details on accounts and assets held by Americans (Unites States citizens, and green card holders) living in Ireland to the IRS. There are significant fines and penalties (including possible criminal exposure) for Americans who fail to report these accounts each year – even if they have always lived in Ireland. There are IRS relief and amnesty programs that alleviate these penalties (in some cases to zero).
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