不是每天美國參議員，更不用說總統候選人，要求政府中止執行聯邦稅法。 不過這正是肯塔基州的蘭德·保羅（Rand Paul Paul）正在做的。 他是七名原告質疑“外國帳戶納稅合規法”的合憲性之一。 該訴訟，克勞福德訴美國，目前在美國俄亥俄州南區地區法院。 由於政府的金融犯罪執法網絡的管理，原告人對於外國銀行賬戶報告製度的合法性也很有挑戰性。
It’s not every day that a U.S. senator, let alone a presidential candidate, sues the government to suspend the enforcement of a federal tax law. Yet that is exactly what Sen. Rand Paul of Kentucky is doing. He is one of seven plaintiffs challenging the constitutionality of the Foreign Account Tax Compliance Act. The lawsuit, Crawford v. United States, is currently before the U.S. District Court for the Southern District of Ohio. For good measure, the plaintiffs are also challenging the legitimacy of the foreign bank account reporting regime, as administered by the government’s Financial Crimes Enforcement Network.
If Paul finds tax treaties distasteful, he must be apoplectic about FATCA. FATCA is like article 26 on steroids. It takes exchange of information to a whole new and unprecedented level. Under FATCA, the transfer of taxpayer information is accomplished programmatically. Foreign banks must share all the relevant account data they possess on U.S. account holders, or face onerous withholding measures. The IRS need not single out particular persons of interest or state the basis for its suspicion. The bank data automatically shows up on the IRS network, in bulk, courtesy of foreign banks or governments transmitting it to us. It’s a tax dodger’s worst nightmare. For this reason, many observers view FATCA as the beginning of the end of bank secrecy.
FATCA eschews the privacy rights enshrined in the Bill of Rights in favor of efficiency and compliance by requiring institutions to report citizens’ account information to the IRS even when the IRS has no reason to suspect that a particular taxpayer is violating the tax law.
In other words, the argument is that FATCA violates individual fundamental privacy rights by requiring foreign banks to collect and share information about income. A similar claim is made against FBARs and FinCEN. The government insists that no such privacy right exists.
Remember: FATCA is not self-enforcing. It’s best viewed as a network of bilateral relationships, each requiring a formal IGA to give it effect. To date, the United States has signed about 115 IGAs. As a practical matter, no IGA means no enforcement mechanism for FATCA.
Unlike tax treaties, IGAs do not require ratification by the Senate Foreign Relations Committee. That means Paul is unable to place a procedural freeze on IGAs the same way he’s put a freeze on tax treaties. That pesky little detail has proved vital to the rise of FATCA and the global spread of similar information exchange mechanisms, such as the OECD’s common reporting standard, which can be thought of as FATCA for the rest of the known universe.
If the lawsuit survives the government’s motion for summary judgment which remains an open question one fascinating issue will be the odd-duck status of these IGAs. In many ways, they seem to resemble taxpayer information exchange agreements, which also don’t require Senate ratification on the grounds that they are manifestations of the executive branch’s ability to conduct foreign policy. In practice, however, TIEAs and IGAs aren’t so different from article 26 of your average tax treaty. Yet the latter requires ratification by the Senate while the former do not.
