Americans Helping Americans Abroad

In recent years Americans living outside the United States have increasingly encountered problems opening and maintaining financial accounts both inside and outside the United States. These problems have related both to access to the payments systems and to the ability to open and manage savings vehicles.

The source of these problems has almost always been legislation or regulatory measures which are new or have recently been reinforced and add to regulatory burdens or legal risks for financial institutions. This leads them to discriminate against “US persons” or some subgroup(s) of them, notably those living outside the United States, to minimize costs and risks.

The Banking Committee has been created to work to mitigate these problems by focusing on both advocacy and, without endorsing any identifiable financial institutions, such practical support as we can provide.

Related Articles:

Access to banking and financial services

The Overall Picture

American citizens resident overseas, and many others with links to the United States, have experienced a variety of problems maintaining access to the financial system. They have encountered problems both in the United States and where they live and work.

Laws and regulations

There appear to be no laws or regulations explicitly precluding access to financial accounts for what are known as “US persons’, i.e. both US residents and non-resident citizens. However, financial institutions have been targeted with new laws, regulations and enforcement efforts in the name of fighting international tax evasion and money laundering. They have also had to adjust to regulatory changes aimed at assuring financial stability and protecting investors. In this context many have taken “business decisions’ restricting their relationships with US persons or cutting them off altogether. In many cases accounts that have been retained are subject to punitive tax regimes and reporting requirements.

While not a comprehensive list, five sets of laws stand out as the legal basis for what has happened:

  1. The Bank Secrecy Act of 1970 which required US persons to report financial accounts held outside the US that in aggregate exceed $10,000 to the US Treasury (these reports, FINCEN 114s, are widely known as FBARs).
  2. The Tax Reform Act of 1986 created rules that applied punitive tax and reporting regimes to “passive foreign investment companies’ (PFICs), which include most collective investment vehicles (e.g. mutual funds). Their purpose was to prevent taxpayers from avoiding current taxation or converting ordinary income to capital gains.
  3. The Patriot Act of 2001, which strengthened know-your-customer requirements (KYC) and their enforcement.
  4. The HIRE Act of 2010 included several provisions, among them the Foreign Account Tax Compliance Act (FATCA), promising reduced international tax evasion. FATCA provided budgetary offsets to expenditures that were otherwise unrelated.
  5. For residents of the European Union, various EU Directives designed to create a comprehensive supervisory framework for collective investments in the European Union. These are known as UCITS (1985, 5th version came into effect in 2016), which regulates collective investments; MIFID (implemented in 2007, a 2nd version will be effective in 2018), which regulates brokers and other financial service providers who may hold such investments in custody for their clients; and the AIFMD (2011, implementation still incomplete but by 2014 it was in effect in the largest countries), which regulates fund managers not covered by UCITS.

It is worth noting that we have heard criticisms of the US Dodd-Frank Act of 2010 but we cannot identify any of its provisions that contribute to problems of access to the system.

Pressure applied to financial institutions

Regulatory pressure on US banks has been building since September 11 and, especially, since the 2008/9 financial crisis. What is new is the intense pressure on non-US financial institutions since the passage of FATCA in 2010 that US authorities have applied by threatening large fines or withholding taxes. These would make it impossible for a financial institution deemed “non-compliant’ to operate, giving it little choice but to adapt. As of June 1, 2017 more than 288,000 financial institutions worldwide had acquired a Global Intermediary Identification Number (GIIN) from IRS, certifying their FATCA compliance.

The case of Zweiplus, a small Swiss bank formed in 2008 with around 250,000 accounts, is illustrative. The Department of Justice and Zweiplus signed a Non-prosecution Agreement in 2015 under whose terms Zweiplus  acknowledged “conduct’, but not crimes, listed in paragraph 17 and paid a “penalty’ of around $1.1 million “in lieu of restitution, forfeiture or criminal fine’. The main cited offense was eight checks totalling $33 000 “ordered’ [sic] by a single “numbered’ account holder. Two features of this agreement stand out: (i) the use of penalties that seem disproportionate in order to enforce US laws on an extra-territorial basis without any kind of legal process; and (ii) the DOJ’s endorsement of Zweiplus’ explicit policy of systematically denying service to US persons even when fully compliant with all (i.e. both Swiss and US) laws.

Adverse consequences for expatriate Americans

Bank executives have rarely been forthcoming about their reasons for their decisions, i.e. which pressures motivate decisions in specific cases. But the overall result has been three broad classes of problems encountered by overseas Americans’ trying to access financial accounts:

  • Both individuals and small businesses have been cut off from basic banking services, i.e. access to the payments system and the ability to obtain credit, in both the United States and abroad. Typical (redacted) rejection letters are attached: (ANB Bank) (ANB Bank 2); (AXA Banque) (AXA Banque 2); (ING Direct) (ING Direct 2); (Bourse Direct).
  • People have suffered punitive treatment of non-US savings vehicles and retirement accounts by IRS, which now designates many such vehicles as “foreign trusts’ or similar. In particular, FATCA and related provisions of the HIRE Act reinforcing earlier, but rarely enforced, legislation relating to PFICs make it prohibitive for most Americans to own: (i) non-US mutual funds; (ii) other collective investment vehicles (e.g. life assurance in France); or (iii) tax-deferred savings vehicles similar to IRAs or 401(k)s that form the basis of defined contribution pension plans. This has put many, if not most, such investments off-limits for Americans, both resident and non-resident, and created a captive market for the US industry. See also http://fixthetaxtreaty.org/problem/superannuation/ for an Australian discussion of US tax treatment of non-US superannuation schemes.

Access to similar vehicles in the United States has also been restricted or denied. For US residents of the European Union, where collective investments are regulated under UCITS, this is compounded by the AIFMD and MIFID. These appear to have an extra-territorial reach. In principle, “passively’ marketed investments (where all communication takes place in the United States, is at the initiative of the investor if resident in Europe, and involves no activity by fund managers or service providers in the European Union), should not be restricted. In practice, especially where financial institutions separately offer products or services in the European Union which makes them subject to AIFMD and MIFID, they may be unwilling to distinguish “passively’ acquired clients from the rest (or fear that EU regulators will not do so).  The result is that many US funds are not available to residents of Europe. In some cases brokers have cited EU regulation as justification for complete brokerage account closures (See here and here); (another example here).

  • “Accidental’ Americans face especially serious problems. These are non-US residents whose only link to the United States is the nationality of one or both parents or the fact that they were born and perhaps spent part of their childhood there. They are numerous, especially in Canada where the nearest maternity facilities in some areas have been in the United States. US citizen-based-taxation causes serious difficulties for such people in the global context where taxation is almost universally residence-based. Once an Accidental’s US link is recognized by his or her bank – it is common in many places to provide your place of birth when opening a financial account – FATCA requires the bank to ask for and obtain a W-9 IRS form. This must be filled out with US tax identification number (TIN, usually a social security number) or a certificate of renunciation of citizenship. Since Accidentals generally do not consider themselves American, most have never obtained a TIN (or are unaware of having done so). Nor have they ever done anything to ensure compliance with any US-required tax or financial account reporting. Obtaining a TIN or formally renouncing is usually possible but requires “coming into compliance’ and is time-consuming. Since professional assistance is needed, the process is usually expensive even if no taxes are claimed by IRS. Until the Accidental comes into compliance he or she is at least delinquent, and possibly criminal, in the eyes of the United States. Some are concerned that they will be targeted by the US Treasury.

Compensating adjustments and corrective responses  

Some positive adjustments and responses in the market place have occurred. Several “asset managers’ and “financial advisors’ have emerged willing and able to assure financial institutions in the United States that they can comply with know-your-customer rules while offering savings vehicles to non-resident Americans. These vehicles do not avoid the restrictions the AIFMD imposes on access to mutual funds for Americans resident in Europe but ETFs and structured portfolios of individual stocks are generally permitted. Normally these accounts include at least some basic banking facilities. The problems with vehicles offered by these advisors and managers are price and accessibility. They usually have significant thresholds for portfolio size ($1 million is a representative minimum but there is often considerable flexibility) and entail high fees, of the order of 1% of assets under management. It is easy to pay something of the order of $5,000-10,000 per year to maintain a very-low-activity account.

Membership in the American Consumer Council, which is available to US citizens who make any of a wide range of ordinary expenditures in the United States, provides access to credit union accounts. These offer limited services but provide basic access to the payments system.

In the European Union, a directive ensuring residents access to basic bank accounts regardless of citizenship (2014/92/EU) is now in force, and once it is fully implemented, the problem of access to basic local banking services in Europe could largely be solved for Americans with a TIN.

Solutions for Accidental Americans are still not available. In France this has contributed to a broader reaction against the extra-territorial reach of much US law and regulation, reflected in a report on this subject prepared by Pierre Lellouche for the National Assembly. We have translated the passages addressing the specific problems of Accidental Americans and options for addressing them

In Canada, these issues led to the creation of the Isaac Brock Society, http://isaacbrocksociety.ca/, which serves as a clearing house and an archive for disseminating and exchanging information and commentary of interest to US-Canadian dual nationals. In Australia Dr. Karen Alpert has created the website http://fixthetaxtreaty.org/

 In the United States a law suit was filed challenging the constitutionality of FATCA, the Inter-governmental Agreements that have been negotiated to implement it, financial account reporting requirements and associated penalties in view of their “unique and discriminatory burdens on US citizens living abroad’. This has been dismissed and the decision affirmed by the 6th Circuit of Appeals in August 2017. Plaintiffs were deemed to have no standing to bring their case on the grounds that they suffered no harm traceable to FATCA. The case will be appealed to the Supreme Court.

What has been the impact on expatriate Americans?

Systematic and comprehensive information about how people facing restrictions or being cut off from access to the financial system have coped is not available. Some have found ways to adapt, sometimes at considerable expense, while others struggle. Two good efforts to take stock of what has happened are:

Finally, the Wikipedia entry for FATCA is very useful. While Wikipedia entries are not authoritative, may not be well-edited and need to be used with caution, this one provides a great deal of useful information, particularly its citations and links to references.

https://en.wikipedia.org/wiki/Foreign_Account_Tax_Compliance_Act.

Cases

American expatriates who have experienced problems with access to the financial system are a heterogeneous group whose circumstances and problems vary greatly. They are not generally wealthy and in most cases their problems are unrelated to their personal tax situations. Some representative cases, many self-reported and their sources noted but unverified by AARO, are provided here:

Banking services: Access to the payments system and bank credit have been issues at both household and small business levels. The cases here illustrate the difficulties that FATCA creates for families and for business relationships: Daniel and Lois Kuettel; Donna-Lane Nelson and Richard Adams; L. Marc Zell. (Source: excerpted from FATCA lawsuit).

Savings vehicles: The most severe cases concern long-term expatriates, in some cases going out of their way to be compliant, whose (non-US) retirement plans and, in some cases, real estate investments are treated differently by IRS and their local tax authorities (see http://fixthetaxtreaty.org/about/our-stories/, especially the stories of “Shaun’, “Susan’, “Don’, and “Gramps’ [source: Dr. Karen Alpert]; and Jonathan, source Patricia Moon at http://isaacbrocksociety.ca/, search “fatca related suicide’]).

Numerous US brokerages have refused new, and restricted or suppressed existing, accounts of European residents. AARO has been provided with multiple copies of a form letter sent by Ileana Musa, Head of Global Client Segment and Strategy of Merrill Lynch, the largest retail broker, in 2016 to clients informing them of a client dump. Circumstances of the clients and their reasons for being in Europe are varied: at least one plans to return home, another is not mentally competent to manage the forced change. We are not sure what solutions these people have found, if any. In a similar case (see “Susan’, cited  above), a 401(k) account was reportedly liquidated and a check forwarded to its owner because her broker failed to pay for postage to deliver the notice before the broker’s 30-day deadline for rolling it over had passed.

Accidental Americans: Fabien Lehagre was born in California but left at age 18 months with his French father for France where he has spent his life. He never again saw his mother or visited the United States until, traveling on a French passport, he was 27. He speaks no English. He was informed by his bank in 2014 that he had to come into conformity with FATCA. Fabien has reported his experience in some detail and created the Association des Americains Accidentels in France to press for redress for all people in his situation and calling attention to the abuses that arise with citizen-based taxation. His efforts are recognized in the Lellouche report cited above.

Jude Ryan was deported from the US with his French mother when he was five. At birth his parents obtained a US passport for him which he used, mainly in Europe, until he obtained French nationality papers. At this point he was advised that he had lost US nationality and never used or renewed his US passport again. US customs recognized him as French by issuing him a tourist visa. However, when he was 40 he was identified by his bank as having US “indicia’ and FATCA problems began. In response he began a “Virtual Hunger Strike’ (https://www.facebook.com/USAccidental/) which involved sending the White House nearly daily emails in which he summarized Accidentals’ situations and communicated a number of case stories. Some of these are available here, with a summary of the stories here.

Professor Allison Christians of McGill University has analysed the problem of Accidentals and its legal context in some depth. She uses a composite she calls “Tina’ to discuss the issues and the abuses that have occurred in order to respect victims’ privacy. (SSRN paper by Allison Christians)

Other: There are numerous cases of expatriate Americans or US residents with overseas links unaware of filing or reporting obligations or who committed oversights or errors, in many cases while relying reasonably and in good faith on tax professionals. Many have met with financial disaster due to penalties and fines, especially related to FBARs, far out of proportion to any alleged tax delinquency. Two such cases: Milo and Lois; and Patricia (more here).

Priorities

Six priorities stand out for Americans resident overseas in the area of access to financial services. Positive action is most urgent for numbers 4 and 3.

  1. To assure access to basic banking services on a non-discriminatory basis where they work and live. In most of the European Union this should substantially be achieved following the implementation of directive 2014/92/EU.
  2. To assure access to basic banking services on a non-discriminatory basis in the United States. French law ensuring that French nationals as well as residents have a right to basic banking services provides a good model that the United States should emulate. If necessary, the Banque de France designates a bank to offer basic services. The Federal Reserve or OCC could do the same.
  3. To assure access to savings vehicles, including IRAs and other tax-sheltered retirement accounts, on a non-discriminatory basis. This is a matter of both (i) being able to open and use new accounts (i.e. building savings); and (ii) having the right to warehouse assets in existing accounts pending later use (i.e. drawing on them). Protectionist provisions of the tax code that create a captive market for the US funds management industry by penalizing savings held elsewhere should be repealed. These relate notably to PFICs and retirement plans, often obligatory or at least encouraged by the host government, deemed by IRS or the US tax code to be “foreign trusts’. Foreign regulation should not be an acceptable justification for closing Americans’ US accounts. In particular, liquidation of, and threats to liquidate, US-based tax-sheltered accounts accumulated over time or other assets with unrealized gains, implying major tax consequences, should be forbidden where the reason is that (i) a client’s personal situation has changed or (ii) a financial institution does not like regulatory changes. Where necessary, financial institutions offering asset custody services, including management of IRAs, can be designated to make their services available to non-resident Americans.
  4. To decriminalize Accidental Americans and give them a low-cost option of being treated as non-resident aliens. The Treasury is aware of the problems that Accidentals face and has proposed legal changes (in the 2016 Green Book) to provide some relief. These would have elements of the amnesty that advocates for Accidentals such as Lehagre and Ryan have been seeking, notably by eliminating the mark-to-market exit tax which for many Accidentals is a prohibitive obstacle to formal renunciation. Some restrictive conditions remain, however, especially relating to passports, and the renunciation fee still appears to be required. So far no action has been taken.
  5. To consolidate FATCA and FBAR reporting obligations for individuals into a single simple filing included in tax returns. Given FATCA requirements on financial institutions it is not clear why individual filings are required at all. At most there should be a single filing which can be shared between the different parts of the Treasury (IRS, FINCEN). The threshold for filing should reflect either current FATCA rules or the FBAR threshold adjusted for inflation since 1970.
  6. To bring excessive fines and penalties for reporting errors, oversights or mistakes into reasonable proportion to the offense.   

2017 Update on the Banking/Brokerage Front

Please see disclaimer as to liability below.*

AARO has held several meetings with financial advisors over the past year or so to discuss access to banking services for Americans residing abroad. We have received mail from members. Most of the mail concerns our members in France, so our information is incomplete for the rest of the world.

We can break the issue into four segments: Within the U.S., Banking and Brokerage services; Local (i.e. non-U.S.) accounts; and Investments.

Within the U.S.

Banking

It remains difficult to open or maintain a simple bank (checking) account in the U.S. if you do not have a U.S. address. Many Americans living overseas try to maintain an address with parents, other family, or friends, but this is not a permanent solution and could be considered fraudulent.

However, some banks will still serve us, such as Fifth Third or Capital One. You must be physically present in the bank branch and should have appropriate identification (including U.S. passport and evidence of home address) to open the account. In the case of Capital One, you must also provide a statement from your local (non-U.S. host-country) bank.

These banks usually also offer retail brokerage services, as well.

Members of the American Consumer Council, an organization open to all American citizens, have access to membership in the State Department Federal Credit Union (SDFCU). Based in Arlington, VA, SDFCU provides members with basic banking services. AARO is in the process of establishing a similar arrangement and will inform is members when the final paperwork is completed. 

We encourage you to let us know about your experience with these banks and whether other U.S. banks allow Americans living abroad to open accounts.

Brokerage

More and more brokerage services have decided to limit or refuse service to Americans residing overseas, even long-standing customers. The list is long.

All is not lost, though. An industry of asset managers/financial advisors has emerged which can provide brokerage services although usually with significant fees attached; the following list is not complete:

London and Capital, based in London. They cater to American customers. They are full asset managers for a fee of 1.25% of assets under management, with a starting (but flexible) threshold of $1 million. The fee percentage goes down with more assets under management. They do not allow mutual funds in the portfolio, only stocks. They work through the Royal Bank of Canada, which does allow check-writing and debit card. They can handle your IRA and other types of savings. Contact: This email address is being protected from spambots. You need JavaScript enabled to view it.

Raymond James offers services through the London offices. The investment threshold (again, flexible) is $250K with a fee of around 1% of assets under management, though the fee isreduced as the size of the portfolio rises. They will transfer whatever you already have into the account, whether it is mutual funds, stocks, or a mix. They also offer different levels of management, to suit each customer. The account can include check-writing and a debit card. Contact: This email address is being protected from spambots. You need JavaScript enabled to view it..

Reilly Financial Advisors have their office in Prague with their base office in San Diego. They have a starting threshold of $25K for a portfolio of ETFs. At higher thresholds, they offer a more diverse portfolio. They offer wealth-building and wealth-management services. Their fee is 1% of assets under management, with a $500 minimum fee. They offer their services through TDAmeritrade. Contact: This email address is being protected from spambots. You need JavaScript enabled to view it.

MASECO is a London-based financial advisory service that caters to Americans overseas.  The threshold is $1million. Fees start at 1.25% and are reduced with more assets under management. They work through Raymond James. They offer a debit card, but no check-writing. The portfolio is made up of mutual funds, mostly managed by Dimensional. Website: https://masecoprivatewealth.com

 Metis Capital Management is based in New York and run by Grant Rogers, who maintains a good relationship with TDAmeritrade and Fidelity and can therefore open an account or help maintain an existing account for customers. There is a flexible threshold of about $1 million and a 1% fee for funds under management. Contact: This email address is being protected from spambots. You need JavaScript enabled to view it.

Local Banking

Our information is essentially for France. Most banks now require U.S. persons to sign a W-9 form confirming that they are U.S. persons and providing their Social Security number. In many cases, local nationals who were born in the U.S. have been unaware of their U.S. nationality until informed by their bank. These “Accidental Americans” are mobilizing and seeking solutions through both the U.S. and French systems. Some are rushing to get Social Security numbers; others are refusing this imposition of citizenship and the accompanying tax filing obligations.

The European Union guarantees the rights of residents to basic bank accounts. The AARO Banking Committee has received a letter confirming that right will provide it to members if they are being refused a simple account. In France (or if you are French and reside outside France), the Banque de France can offer a solution: obtain formal proof of refusal to open an account (“attestation de refus d’ouverture de compte”) from the bank that has rejected either your old account or your new application. Then go to: www.abe-infoservice.fr., click “Banque” and “Droit au compte” for instructions. A bank should be designated to provide you with basic banking services within a few days.

The major banks are still offering “comptes courant”(checking accounts) and one should have no problem opening a Livret A or any of the accounts that are exempt from a bank’s FATCA reporting obligation. Still, some banks and some branches, even of the major banks, are refusing to deal with Americans. If possible, go to the main branch in Paris or your region.

Problems have been reported with Crédit du Nord, in particular, and some with Société Générale. Even BNP, at local branch level, has refused to take an American. As the OECD Common Reporting Standard is brought into the equation, however, the issue may become less one of discrimination against Americans and increasingly one of refusing accounts to people who do not reside in the country  (tax residence).

In Switzerland, Tages Anzeiger reports : “Vontobel, Postfinance and Migros-Bank have never stopped receiving U.S. customers anyway. During discussions and meetings, however, we were also informed by UBS, Credit Suisse, Cornèr Bank and the Cantonal Bank of Vaud, under which conditions they are re-entering this business. We have expanded our offensive. In January 2017, we will publish a list of 24 Swiss banks that will accept U.S. citizens as customers. 19 of them have only started again thanks to my newsletter. I am proud to be able to do this for U.S. citizens.” (http://www.tagesanzeiger.ch/wirtschaft/standard/19-Banken-nehmen-wieder-USBuerger-als-Kunden-auf/story/26115487 and Google translation)

No problems have been reported by Americans in the U.K.  We have received some reports of difficulties in Norway and Denmark. In Germany, people in the AARO Facebook group have reported difficulties in opening accounts locally, and having to make day trips to larger cities and supply not just proper ID, but also notarized proof of residence.

Investments

There are more complicated issues around investment accounts. Regulations surrounding these are clearly protectionist in character. The banks do not report income as they do on a 1099 form from an American institution. Some investments, mutual funds or funds in a French “Assurance Vie”, for example, are treated as Passive Foreign Investment Companies (PFICs) by the IRS. These can be difficult to report correctly and may be subject to punitive taxation. Some funds might even be forbidden by the U.S., if they are linked to certain countries and the foreign institutions are unaware of these restrictions. The simple solution for these institutions is to refuse service to Americans while most Americans should avoid PFICs.

At the same time, EU regulations have made it difficult for Americans resident in the EU to invest in collective investments, notably mutual funds, in the U.S. or elsewhere outside Europe. As a result, the options offered by the brokerages suggested above are in some cases restricted to cash, bonds, individual stocks and ETFs.

AARO hosted a meeting by Witam for residents of France. At a threshold of €250K, they can offer a U.S.-friendly “assurance vie” and more attractive investments for customers with more to invest. Please refer to the event follow-up report: “Investment Follow-Up with WITAM and WISEAM

Please note: 

All material contained herein is indicative and for discussion purposes only and is subject to change without notice. AARO is not acting as your agent, fudiciary or investment adviser and is not managing your account. The provision of information in this communication is not based on your individual circumstances and should not be relied upon as an assessment of suitability for you of a particular product or transaction. It does not constitute investment advice and AARO makes no recommendation as to the suitability of any products or transactions mentioned herein, nor does it purport to identify all the risks (directly or indirectly) associated with any product or transaction described herein.

AARO does not provide investment, accounting, tax or legal advice; such matters as well as the suitability of a potential transaction or product or investment should be discussed with your independent advisors. Where you are acting as an adviser or agent, you should evaluate this communication in light of the circumstances applicable to your principal and the scope of your authority.

AARO shall have no liability to the user or to third parties, for the quality, accuracy, timeliness, continued availability or completeness of any data or calculations contained and/or referred to in this communication nor for any special, direct, indirect, incidental or consequential loss or damage which may be sustained because of the use of the information contained and/or referred to in this communication or otherwise arising in connection with the information contained and/or referred to in this communication.

This communication contains writings and information that are proprietary to AARO and protected under copyright and other intellectual property laws, and may not be reproduced, distributed or otherwise transmitted by you to any other person for any purpose unless AARO’s prior written consent has been obtained. 

Here for the Long Haul - Investment Options for Americans Overseas

On May 18, London & Capital presented an information meeting on investment options we Americans have when we live abroad. Daniel Freedman, head of the US Family Office at London & Capital, moderated the event. Tony McGloughlin, director at London & Capital in the US Family Office, was on the panel, as specialist in the investments. From AARO, Tim Ramier, Ramier Law Office and chairman of the AARO tax committee, and Mojgan Ghanipour, C.P.A. and partner at MG Partners were also on the panel, specialists in estate and tax planning. Behind the scenes, Joseph Cohen organized the event at the Intercontinental Marceau.

The meeting started off with the assumption that we did not need an introduction to FATCA, nor our FBAR and tax reporting obligations to the US. There was a very informative comparative table summarizing tax obligations in France and in the US: maximum income tax rate, capital gains tax rates, taxes on interest and dividends, social “contributions”, and wealth tax.

Daniel presented a case study, not one that represented us individually, but rather one that gathered together most of the complicated issues we face. Most of us do not face all these issues: an American woman, who already had a successful career in the US (retirement accounts and equity investments in addition to a fully paid up apartment in NYC), married to a Frenchman (not currently working), living in France since 2000, with two children, an apartment in Paris (bought for €900000 and now worth €2 million), an assurance vie contract…

With that scenario, there were several questions: what happens if they sell the apartment they live in? (US tax on gain of over $250,000 for the US taxpayer); how is the assurance vie handled for US taxes? Is it a good investment for us? (If you are American, you’re better off investing in the US with a brokerage account there. Assurance vie contracts, the multi-support ones, are PFICs and better to avoid them.) That brought up the question of getting a brokerage account. Of course, London & Capital have a solution for that, so while brokerages are dropping us, others are maintaining our connection to the US. This applies even if the American has no US address to claim.

French taxes were also discussed, including the ISF, which the case study family would definitely have to pay. Trusts, inheritance issues. (In France, US citizens can choose to have the estate settled under a US state’s regime rather than the French one.) The inheritance the American wife in the study will get will not be taxed in the US because it falls under the threshold, and it will not be taxed in France because the estate will have fulfilled the US tax obligations of reporting to the IRS and the treaty exempts it, then, from French taxes.

The case study allowed discussion of most of our issues. Daniel, the moderator, made sure that the questions were answered briefly and to the point. Personal circumstances were discussed privately with the panel members when the seminar was over.

AARO and AAWE plan to hold more events with London & Capital, less of an overview and more focused on specific case studies.

 

Banking Committee Update - Fall 2015

Please note that AARO cannot endorse any of these banks.

In France: 

Based on the information and feedback AARO's Banking Committee has gathered, banks are still unequal in their treatment of U.S.-person customers. Most banks are requesting us to send in W-9 forms. BNP seems to be the most consistent, allowing us to have most types of accounts. One person noted that Caisse d'Epargne allowed them to have checking accounts, livrets, and even assurance vie. There has been positive feedback about HSBC and Crédit Agricole, as well.

Société Générale recently allowed one person to open a checking account and a Livret A, but would not sell him an assurance vie or allow him to open any kind of investment account.

One person reported that her account manager at Crédit du Nord said her accounts would be closed; while another U.S. customer at the same branch said all her account manager wanted was the W-9 form.

Please note that in France, the banks do not have to report the Livret A, LDD, and some other state-sponsored limited savings accounts. You can find the list of these accounts in the annex of the IGA. More productive investments, however, are more difficult to get.

In the United States:

Fidelity: In 2013, Fidelity dictated that overseas account holders could sell assets and withdraw money but not buy new assets or make deposits. Core accounts continued to earn 0.01% interest. Following a policy change this summer, Fidelity changed an AARO member’s core account into a "cash balance" account that will no longer earn that small interest. Otherwise, nothing else changes.

TDAmeritrade: Reports from late 2013 and early 2014 indicated that TDAmeritrade was still allowing U.S. customers with foreign addresses to open accounts.

Raymond James allows U.S. customers with foreign addresses. If you are interested, please contact the banking committee (This email address is being protected from spambots. You need JavaScript enabled to view it.), which will forward your request to the AARO member who can advise you about it.

Fifth Third Bank has allowed U.S. citizens with only a foreign address to open accounts. You must be present in the U.S. and go to the branch office to open the account with a proof of residence (at your foreign address) and your U.S. passport. The application form you sign at the end is the equivalent of a W-9.

Elsewhere:

In Denmark, one U.S. client opened an account with Danske Bank (a major bank), and the individual has not been contacted concerning FATCA compliance at all.

Please tell us what your recent experience has been at your bank in France, the United States, and elsewhere in the world. Keep the banking committee informed (This email address is being protected from spambots. You need JavaScript enabled to view it.). Scan and send us copies of your bank correspondence if you are being discriminated against, in spite of complying with a request for the W-9 form.

FATCA Update and French Inheritance Law

Inheritance in France and recent developments on FATCA

AARO tax specialists Tim Ramier and John Fredenberger presented a review of the recent Inter-Governmental Agreement on FATCA signed on November 14 between France and the United States followed by an overview of inheritance and how it is managed in France and the US.

Over 60 attendees came to the Forum 104on December 9 for this meeting − an excellent turn-out. The documents that were cited during the meeting will be posted on the AARO website for members to download.

FATCA

John Fredenberger, our tax specialist who has been following FATCA closely ever since it was first introduced in the HIRE Act in 2010, gave us a rather positive outlook on this Inter-Governmental Agreement (IGA). He began his talk with some background: how FATCA started and has evolved over the past three years.

Historical Background

FATCA, the Foreign Account Tax Compliance Act, was signed into law by President Obama in 2010 as part of the HIRE (Hiring Incentives to Restore Employment) Act. The immediate impact on individual taxpayers was a new requirement that US citizens (and other US persons) with foreign accounts (non-US accounts) would attach a statement with that account information to their tax returns if the aggregate (combined) balance of those foreign accounts was over $50,000.

After protests from overseas organizations, the US Treasury recognized that the $50,000 threshold was too low for non-resident US citizens, so they raised the threshold for bona-fide residents living outside the US to $200,000 for individuals filing separately, and $400,000 for married persons filing jointly.

This "statement" became Form 8938 in November of 2010. Today, if a US person has foreign accounts that, combined, are equal to or above the threshold amounts, he must attach Form 8938 to his yearly tax return. This new form does not replace the annual FBAR (Foreign Bank Account Report) Form TD F 90-22.1 which US Persons must file with the US Treasury Department by the end of June every year.

That was the new requirement for taxpayers but FATCA also included new rules for foreign financial institutions (FFIs). In order to verify that US persons were correctly reporting their foreign accounts, the IRS decided to extend their domestic document matching program which has been in effect in the US since 1974. In the US, American financial institutions are required to send account and income information to both the taxpayer and to the IRS. The IRS then matches what the taxpayer declares on his return with what the bank reports. In the 1990s, the IRS suspected that US persons were circumventing the document matching program by investing in US markets through financial institutions abroad that were not subject to US reporting requirements. This led the IRS to launch a program that certified financial institutions as "Qualified Intermediaries" (QI) and required them to issue W9 forms to their US customers.

FATCA is a further extension of this. It requires foreign financial institutions (FFIs) to actively seek out and identify their customers who are US persons and to report their account information to the IRS. The penalties for non-compliant FFIs are significant - a withholding tax of 30% on their operations in the US market. This new compliance burden has meant that some FFIs are choosing to simply exclude all customers who may be US persons.

The uproar over the expense of identifying such customers, and the burdensome reporting to a foreign authority, which in many cases may be against other country's laws, has led to the negotiation of Inter-Governmental Agreements (IGAs). There is some confusion about what these agreements actually are: treaties or competent authority agreements? There are two standard IGAs: under the Model I a country's FFIs report directly to the IRS while under a Model II they report to their government's tax authorities which, in turn, report to the IRS.

The French IGA

The French IGA was signed on November 14, 2013 between Pierre Moscovici, the French Finance Minister, and Charles Rivkin, the US Ambassador. It is a Model II agreement which will take effect "when their necessary internal procedures for entry into force have been completed".

Under the French IGA, reporting to the IRS will be phased in over three years:

  • For reportable (see below) accounts existing in 2014 French FFIs will report the name, address, US Social Security number, account number and balance on December 31 of that year.
  • For reportable accounts existing in 2015 (reported in 2016), FFIs will report the same information and the interest, dividends and other income credited to the account.
  • For reportable accounts existing in 2016 (reported in 2017), the FFIs will report the same information as above and include the gross proceeds credited to the account from the sale of capital assets.

What accounts are not reported?

  • Any accounts prior to 2014.
  • Accounts existing prior to June 2014 with a year-end balance of under $50,000.
  • Any of the following account types: Livret A and Livret Bleu; Livret de Développement Durable (LDD); Livret d'Epargne Populaire (LEP); Livret Jeune; Plan d'Epargne Logement (PEL) and Compte d'Epargne Logement (CEL); Plan d'Epargne Populaire (PEP); Accords de Participation; Plan d'Epargne Entreprise (PEE) and Plan d'Epargne Inter-Entreprise (PEI); Plan d'Epargne pour la Retraite Collective (PERCO and PERCOI; and blocked "comptes courant". Also, certain retirement contracts and schemes, such as the MADELIN, MADELIN AGRICOLE, PERP, PERE, and PREFON and those found in Articles 39, 82, and 83 of the code des impôts.

Which accounts will be reported?

  • Any account not cited above that has more than $50,000 but less than $1,000,000 (low-value accounts) will be reported with limited due diligence requirements. The FFIs will run an electronic search only for possible US person account holders.
  • Accounts over $1,000,000. The FFI have greater due diligence requirements.

What is unresolved?

  • We still don't know how the reciprocity part of the IGA will be handled. Will the US be reporting to France the US accounts held by US citizens who reside in France? If so, will this reporting include IRAs, 401Ks or Trusts?
  • Assurance-Vie: Is it included in the excluded retirement contracts, or is it simply another reportable investment account?
  • Joint accounts held by Americans with non-US citizens (family or spouses, for example).
  • And is this IGA a treaty subject to ratification in the US?

The US version of the IGA: http://www.treasury.gov/resource-center/tax-policy/treaties/Documents/BilateralAgreementUSFranceImplementFATCA.pdf

The French version of the IGA: http://www.economie.gouv.fr/files/usa_accord_fatca_14nov13.pdf

Surviving Death in France as a US Citizen

Tim Ramier presented inheritance issues for US citizens in France. The key, no matter where you live, is to organize and plan, while you are alive.

Residency

Both the US and France are interested in our estates, even if we are residents in France. For both countries your estate is based on your worldwide assets. Furthermore, if the estate (the "succession") is handled in France, there is still an obligation to report to the US. Which country handles it depends on your residence status. Be aware that France determines residency on more than just presence in the country. If you have attachments in France (children in school, for example) you can still be considered a French resident even if you maintain your tax residence in the US, or elsewhere.

Who inherits?

In the US you get to decide via a will. Probate is handled on the state level, not the Federal level. Generally, the surviving spouse is tax exempt and can inherit the total amount. The US is not interested in who inherits and will tax the estate before distribution. For 2013, only estates over $5,250,000 are taxable. The lifetime distribution of gifts is added back to the estate to determine the total.

In France, there are forced heirs by law. The share of the surviving spouse or civil union partner is tax exempt and the amount you can leave by will is determined by the number of children. If there is one child, you can will up to 50% of your estate; two children, they will inherit 2/3 of your estate; and three or more children take 3/4 of your estate. Each child has a €100,000 deduction and then pays tax on a progressive scale according to how much taxable estate is left. Other heirs (brothers and sisters, parents, nieces and nephews) have fewer tax exemptions and higher tax rates. Unrelated heirs pay 60% in tax and have only a €1,500 deduction.

The Process

In France, the concept of the estate is different; the "succession" is an automatic transfer of ownership at the moment of death. In France it is a notaire who manages the succession. In the US, on the other hand, the estate is an entity that exists from the moment of death until the settlement. The estate is managed by an executor or administrator, approved and empowered by a probate court, in accordance with your will or by petition to the court if intestate (no will).

In France the family will receive a death certificate from the mairie (mayor's office). The notaire will create the deed of heirship and will take care of all the official declarations to banks and the government.

In France, the heirs or legatees have 6 months to file an inheritance tax return and pay any taxes. In the US, taxes are due after 9 months, but there are extensions. When inheriting from a US resident estate, Tim recommended filing form 706 with the IRS, even if there is no US tax due, to avoid confusion in France.

What you inherit from someone resident and a US citizen in the US this falls under the US-France Estate Tax Treaty and the estate is not subject to double taxation. So if you fulfill the tax requirement in the US (even if nothing is due) you have fulfilled the requirements under the tax treaty and by virtue of the treaty provisions no tax on such gifts and legacies is payable to France. This treaty overrides local French tax law.

Some tips:

  • Take inventory of your worldwide assets.
  • Create an estate file including what you own, what accounts you have, who to contact. (A worksheet for this file will be made available to members on the AARO website.)
  • Create a will – for France and the US
  • Create a Health Care Proxy and a living will in case you are incapacitated or have a terminal illness and you need to name someone who will make healthcare decisions for you.
    (Note: a living will, as Americans think of it, does not exist in France. In France there is the "Mandat de protection futur" wherein you can name a person to make financial and healthcare decisions in case of verified incapacity. It must be set up by a notaire.) You can also do French and American Powers of Attorney or Procuration to appoint someone to act on your behalf.

Here are the full-length videos of these two presentations.

FATCA with J. Fredenberger and T. Ramier:

Inheritance in France with T. Ramier and J. Fredenberger:

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