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The focus of this chapter is on providing a policy background to and an examination of the Foreign Account Tax Compliance Act, a unique piece of US tax legislation that has no precedent in the history of international tax law. As detailed in Chapter 3, the exchange of information (EOI) upon request standard in use between 2002 and 2016 is flawed, but that is not the only weakness in the OECD’s efforts to combat tax evasion. As explained in Chapter 8, the US FATCA initiative has been a driving force and an impetus for the G20 and OECD’s launch of automatic exchange of information (Automatic Exchange). While the goal behind FATCA, noted below, of curbing the use of tax havens to hide income of US taxpayers residing in the United States is consistent with the principles of equity in international tax policy, discussed in Chapter 2, the same cannot be said of FATCA’s application to millions of individuals in Canada, the United Kingdom, and the European Union who are US nationals but not tax evaders. The new regime acts to drive these people into the enforcement cannons of the IRS, which, as described in Chapter 10, can be financially and psychologically traumatizing. As explained in Chapter 11, refocusing American enforcement on residence rather than nationality would make the administration and enforcement of the data collected through FATCA more consistent with the principles of equity in international tax policy.
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Christians, Allison, & Arthur J Cockfield. “Submission to Finance Department on Implementation of FATCA in Canada: Submission on Legislative Proposals relating to the Canada–United States Enhanced Tax Information Exchange Agreement” (10 March 2014), online: http://dx.doi.org/10.2139/ssrn.2407264.
Cockfield, Arthur J. “The Limits of the International Tax Regime as a Commitment Projector” (2013) 33 Virginia Tax Review 59.
Grinberg, Itai. “The Battle over Taxing Offshore Accounts” (2012) 60 UCLA Law Review 304.
Kerzner, David S. “Surviving FATCA: A Roadmap for Delinquent U.S. Filers and Their Advisors” (2014) 7 Taxes & Wealth Management 1.
Milet, Matias. “FATCA and Canadian Investment Entities” (2015) Journal of International Taxation 29 (Checkpoint).
- Foreign Account Tax Compliance Act
David S. Kerzner
David W. Chodikoff
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