In what appears to be the first challenge to the US Foreign Account Tax Compliance Act (“FATCA”), lawyers for Gwen Deegan of Toronto and Virginia Hillis of Windsor, Ontario say that FATCA exposes their clients 'to a deprivation of their liberty and security of the persons', in violation of Canadian Constitutional rights. FATCA applies to all “US persons”, which in itself is an expansive test and captures many groups of people that may not even realise they are “US persons".
Pearse Trust Blog
Further to our previous blog on FATCA wherein we observed the postponement of the implementation dates for FATCA, the regime has now been implemented since July 2014.
Jurisdictions across the world are producing local legislation and guidance in order to implement FATCA on their home soil.
As part of the patent reform in the US, a new bill was introduced into the US House of Representatives on 22 July 2013. Its aim is to protect innovators from frivolous patent litigation brought by the increasing number of patent trolls, particularly in the technology industry.
Background To Latest Delay
Since 2011 we have written a number of blog posts on FATCA. In our blog post FATCA For The UK, we mentioned an implementation date of 1 January 2013. That date was later postponed to 1 January 2014. We highlighted this in our blog post FATCA – Implementation Deadlines and provided an overview of the key implementation deadlines following the release of IRS Announcement 2012 – 42. However, in July of this year, the US Treasury Department announced the further postponement of the withholding tax regime imposed by FATCA on foreign banks and other foreign financial institutions (FFIs) by six months until the 1 July 2014.
Further to our recent blog posts Does FATCA affect your business? and FATCA for the UK?, we are now able to provide an overview of the key implementation timelines for due diligence and other requirements under FATCA, following the release of IRS Announcement 2012-42.
Background to FATCA
The Foreign Account Tax Compliance Act (FATCA) is U.S. tax legislation which comes into legal force on 1st January, 2013. This new legislation was enacted by the Hiring Incentives to Restore Employment ("HIRE") Act 2010.
Commentary in the media suggests that many US companies are using a structure called the “Double Irish Dutch Sandwich” to reduce their worldwide taxation liabilities connected with Intellectual Property (IP). The companies said to be using this structure include Apple, Facebook, Google, Microsoft, Oracle Corp and Pfizer Inc. The structure utilises advantageous taxation rules in Ireland and the Netherlands to limit the taxation payable on flows of royalty income generated from IP, and is also tax efficient from a US perspective.
The Bank Secrecy Act was passed into law in the United States in 1970 in an attempt to combat money laundering in the US As a result of this Act, foreign financial accounts including bank accounts, brokerage accounts, mutual funds, unit trust and other financial accounts came under scrutiny as the United States Government became wary of United States persons utilising these accounts outside the US in an attempt to evade more stringent US laws. The Internal Revenue Service (IRS) began to enforce the disclosure of such foreign financial accounts by means of the Report of Foreign Bank and Financial Accounts (FBAR).
Lehman Brothers International (Europe) (LBIE), the principal European trading company in the Lehman Brothers group, regulated by the Financial Services Authority (FSA), was placed in administration in 2008, following the bankruptcy of Lehman Brothers Holdings Inc. The administrators sought the assistance of the UK Supreme Court to interpret the FSA’s Client's Assets Sourcebook Chapter 7 (CASS7) and the treatment of funds that had been paid to LBIE before it entered administration.