Hamid Ghany

Last week, it was re­vealed that Op­po­si­tion Leader Kam­la Per­sad-Bisses­sar wrote to then pres­i­dent-elect Don­ald trump on Jan­u­ary 13 to in­quire about the po­si­tion of his in­com­ing ad­min­is­tra­tion on the is­sue of FAT­CA.

The let­ter ap­peared to be a re­sponse to (i) the re­quest that she made of Prime Min­is­ter Row­ley in cor­re­spon­dence sent to him at the be­gin­ning of the year for him to do so hav­ing re­gard to the change in Wash­ing­ton and (ii) the re­jec­tion of this po­si­tion by Fi­nance Min­is­ter Colm Im­bert in Par­lia­ment on Jan­u­ary 6.

The let­ter was copied to Steven Mnuchin (trea­sury sec­re­tary nom­i­nee), Mick Mul­vaney (di­rec­tor of Of­fice of Man­age­ment and Bud­get nom­i­nee), Reince Priebus (in­com­ing White House chief of staff), Sen­a­tor Rand Paul (R-Ken­tucky), Rep­re­sen­ta­tive Mark Mead­ows (R-North Car­oli­na), out­go­ing US Am­bas­sador John Estra­da, and T&T Am­bas­sador in Wash­ing­ton, An­tho­ny Phillips-Spencer.

The let­ter is very time­ly as the Joint Se­lect Com­mit­tee of Par­lia­ment is cur­rent­ly ad­dress­ing the FAT­CA leg­is­la­tion, while on Jan­u­ary 20, Don­ald Trump be­came Pres­i­dent of the Unit­ed States bring­ing with him the re­al­i­ty that there is like­ly to be a change of pol­i­cy on FAT­CA.

In my col­umn on Christ­mas Day, I high­light­ed the fact that the Re­pub­li­can Plat­form 2016 adopt­ed at the Re­pub­li­can Con­ven­tion in Cleve­land last Ju­ly stat­ed the fol­low­ing at page 13 un­der the head­ing "The Fourth Amend­ment : Lib­er­ty and Pri­va­cy":

"The For­eign Ac­count Tax Com­pli­ance Act (FAT­CA) and the For­eign Bank and As­set Re­port­ing Re­quire­ments re­sult in gov­ern­ment's war­rant­less seizure of per­son­al fi­nan­cial in­for­ma­tion with­out rea­son­able sus­pi­cion or prob­a­ble cause.

Amer­i­cans over­seas should en­joy the same rights as Amer­i­cans re­sid­ing in the Unit­ed States, whose pri­vate fi­nan­cial in­for­ma­tion is not sub­ject to dis­clo­sure to the gov­ern­ment ex­cept as to in­ter­est earned. The re­quire­ment for all banks around the world to pro­vide de­tailed in­for­ma­tion to the IRS about Amer­i­can ac­count hold­ers out­side the Unit­ed States has re­sult­ed in banks re­fus­ing ser­vice to them. Thus, FAT­CA not on­ly al­lows 'un­rea­son­able search and seizures' but al­so threat­ens the abil­i­ty of over­seas Amer­i­cans to lead nor­mal lives.

We call for its re­peal and for a change to res­i­den­cy-based tax­a­tion for US cit­i­zens over­seas."

FAT­CA is not a stand-alone piece of leg­is­la­tion as it was in­clud­ed in the Hir­ing In­cen­tives to Re­store Em­ploy­ment Act as Ti­tle V of that Act (Pub­lic Law 111-147, March 18, 2010). It was sim­ply in­sert­ed in­to the leg­is­la­tion and nev­er re­ceived the usu­al floor de­bate, was nev­er vot­ed out of com­mit­tee as a free-stand­ing bill, no amend­ments were of­fered, no cost-ben­e­fit analy­sis was done, and it was not draft­ed in the usu­al leg­isla­tive man­ner.

One of the peo­ple copied on Per­sad-Bisses­sar's let­ter was Reince Priebus who is now the White House chief of staff. Pri­or to tak­ing up this job, he was Chair­man of the Re­pub­li­can Na­tion­al Com­mit­tee. On Ju­ly 17, 2015, he is­sued the fol­low­ing state­ment on FAT­CA in re­sponse to a law­suit filed by a group called Re­pub­li­cans Over­seas Ac­tion (ROA) against FAT­CA:

"FAT­CA vi­o­lates sev­er­al of the con­sti­tu­tion­al rights and pro­tec­tions af­ford­ed to over­seas Amer­i­cans. With­out these pro­tec­tions, Amer­i­cans abroad are sub­ject to ar­bi­trary dis­crim­i­na­tion by for­eign banks. By fil­ing this suit, ROA is bold­ly speak­ing up for the fi­nan­cial rights of Amer­i­cans around the world. If suc­cess­ful, their law­suit will pro­vide ex­pats with both im­me­di­ate in­junc­tive re­lief as well as the se­cu­ri­ty of know­ing that the Trea­sury de­part­ment is un­able to en­force these crip­pling pro­vi­sions."

Priebus has the ear of the Pres­i­dent and runs the White House. It is ab­solute­ly im­per­a­tive that the Par­lia­ment of T&T get some in­di­ca­tion from Wash­ing­ton about the ap­proach of the Trump ad­min­is­tra­tion to FAT­CA be­fore leg­is­la­tion vi­o­lat­ing hu­man rights is en­act­ed here.

In the Jour­nal Tax Notes In­ter­na­tion­al Vol. 69, No. 6, Feb. 11, 2013 Prof Al­li­son Chris­tians of Mc Gill Uni­ver­si­ty in an ar­ti­cle en­ti­tled "The Du­bi­ous Le­gal Pedi­gree of IGAs (And Why It Mat­ters)" said this in the ab­stract:

"When Con­gress en­act­ed the For­eign Ac­count Tax Com­pli­ance Act in 2010, it made no men­tion of any in­ter­na­tion­al­ly-agreed al­ter­na­tive to its en­force­ment, and Con­gress has made no au­tho­riza­tion since then for the pres­i­dent to over­ride FAT­CA's statu­to­ry pro­vi­sions by in­ter­na­tion­al agree­ment. Yet due to dif­fi­cul­ties in im­ple­ment­ing FAT­CA, Trea­sury has en­tered in­to sev­er­al 'in­ter­gov­ern­men­tal' agree­ments (IGAs) to es­sen­tial­ly by­pass the hur­dles, even go­ing so far as to draft mod­el IGAs with the in­tent of stream­lin­ing their en­act­ment glob­al­ly. This col­umn ex­am­ines the na­ture of these agree­ments and con­cludes that their le­gal pedi­gree is ten­u­ous as a con­sti­tu­tion­al mat­ter."

Why is there so lit­tle crit­i­cal think­ing on this lo­cal­ly? Why is every­one be­ing led to be­lieve that the "Big Stick" pol­i­cy of the Oba­ma Trea­sury De­part­ment that threat­ened us with 30 per cent bank­ing penal­ties will be the same for the Trump Trea­sury De­part­ment? The Plat­form of the Re­pub­li­can Par­ty is an­ti-FAT­CA.

This FAT­CA leg­is­la­tion is like­ly to be­come re­dun­dant with an ex­ec­u­tive or­der to dis­able all IGAs world­wide. So why the big rush here in the face of a FAT­CA re­set? Is there an­oth­er rea­son be­hind in­fringe­ment of hu­man rights and da­ta pro­tec­tion?