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  1. Wealth
November 20, 2012

US ‘a bully’ because of FATCA

By Spear's

The US is guilty of behaving like a bully in imposing unfair costs on UK investment managers and banks, says Simon Culhane

The US is guilty of behaving like a bully in imposing unfair costs on UK investment managers and banks, which work with American clients, via its Foreign Account Tax Compliance Act, says Simon Culhane, Chartered FCSI and CEO of the Chartered Institute for Securities & Investment (CISI).

In the current edition of the CISI member magazine, Securities & Investment Review, Mr Culhane discusses the Foreign Account Tax Compliance Act (FATCA) legislation, the aim of which is to force non-US financial institutions to identify their US clients and report them to the Internal Revenue Service (IRS).

Read more: What FATCA means for you

“The Americans have slipped in an extra territorial requirement that will impose significant costs on all asset and investment managers and banks. This US requirement is resulting in a double whammy. It is completely extra-territorial and seeks global compliance while imposing significant additional costs of compliance on virtually every financial organisation globally. It has resulted in many financial organisations, including private client and wealth managers, turning away clients simply because they have a link with the US. That strategy alone will not get a financial institution out of the net,” says Mr Culhane.

The IRS wants to recover taxes due from any US citizen who have accounts outside the US and has not declared them. However, says Mr Culhane, while this is understandable, “it is wrong to penalise firms based outside the US and impose significant costs and draconian individual responsibility.”

This, says Mr Culhane, is illustrated by the fact that the legislation is making it necessary for any firm that has any investment in the US to first identify which of its customers, or unit trust holders, are American and then report them to the US tax authority, the IRS.

If the firm does not comply, it will be deemed non-compliant and face a range of sanctions, including a 30% withholding of any investment in the US, such as the sale of securities.

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Read more: Withers: What the UK-US FATCA agreement means for HNWs

“Furthermore, the US authorities require each foreign financial institution (FFI) to appoint a so-called responsible officer. That named individual from a foreign firm has to be identified during the FFI registration process and will receive a US Employee Identification Number (EIN).

“This individual will be responsible for compliance with the FATCA regulations within that financial institution and may be personally liable for any substantial non-compliance. In addition, each FFI is required to search for indicators of a US nexus, and this includes whether the FFI has on record any US telephone number, and requires the financial organisation to monitor actively and continuously that the individual does not become a US citizen,” says Mr Culhane.

The magazine goes on to say that there are signs things might improve a little as recently HM Revenue & Customs signed an Inter-Governmental Agreement (IGA) and announced a consultation process aiming to reduce the compliance burden.

“No one is advocating tax evasion, but putting the costs on the UK is unfair and our Government should have the courage to say so,” says Mr Culhane.

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