FATCA & HMRC: breaching my human rights to data protection and privacy

by Jenny

FATCA & HMRC: breaching my human rights to data protection and privacy

by Jenny
Jenny
Case Owner
I am crowdfunding to protect the fundamental rights of Accidental Americans and other compliant US citizens living abroad.
21
days to go
£93,464
pledged of £156,000 stretch target from 628 pledges
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Jenny
Case Owner
I am crowdfunding to protect the fundamental rights of Accidental Americans and other compliant US citizens living abroad.
Pledge now

This case is raising funds for its stretch target. Your pledge will be collected within the next 24-48 hours (and it only takes two minutes to pledge!)

Latest: Sept. 28, 2020

My legal team write to the EDPB about HMRC's response to my Letter of Claim

Today's letter from my legal team to the European Data Protection Board, available on the case correspondence page, discusses Friday's response from HMRC and calls on the European data p…

Read more

Why I am taking HMRC to court and need your help 

Hi, I'm Jenny.  I am a US-born British citizen. I moved to the UK more than 20 years ago, when I was 22 years old. I am married and I work with deaf students at the local university where I am a research associate. I have a UK bank account where I receive my salary and pay my taxes on my earnings.

Like many Americans, I have found myself caught up in a piece of legislation called FATCA (Foreign Account Tax Compliance Act). You may not have heard of it before, I hadn't either until I received a letter from my bank out of the blue saying that I "may have tax obligations in the US" and that the bank was going to send information about me to the Internal Revenue Service (IRS). Under FATCA, banks are required to send all of my personal and financial information – and that of all those like me - to US authorities on an annual basis.

Under FATCA, banks are required to send all of my personal and financial information – and that of all those like me - to US authorities on an annual basis.

I am bringing a claim against HMRC for sharing my personal and financial information with the IRS because:

1.      The sharing of all my personal and financial information is a violation of my fundamental human rights to privacy and data protection. My information is irrelevant to the objective of FATCA which is to collect tax from those evading it. I am not liable for tax under FATCA as I earn less than the $104,000 income tax exemption for Americans living abroad.

2.       The sharing of my personal and financial information is in direct breach of GDPR.

3.       This sharing of my personal and financial information with the US government exposes me and countless others to a potential hack throughout the data processing chain (bank, HMRC, IRS).

4.       There is the significant unintended consequence that other US-born British citizens like me are unable to open local bank accounts, or are seeing them be closed down, due to the cost implications on banks of compliance with FATCA. 

Nobody should evade tax. My problem is not with FATCA's objective but the disproportionate nature of the measure to achieve its objective.

(For more information and background on FATCA click here)


Why support this claim

Like me, you believe nobody should evade tax. You recognise that the problem is not with FATCA's objective but the disproportionate nature of the measure to achieve this objective. 

You are:

  • a US citizen concerned about the direct implications of FATCA in the UK on you – the systematic and generalised processing of your personal and financial information, or;
  • a US or non-US citizen who is concerned with the growing trend of encroaching on basic human rights to privacy and data protection via systems of automatic exchange of information and public registers operated by governments, often against the advice of data protection authorities.

Sometimes it takes an ordinary person to defend individuals' fundamental rights when public authorities seek to achieve honourable public objectives through disproportionate means.

As I am one individual defending a principle that affects many, I need the support of those who share my concerns.


What we can do with your help

A legal challenge of this type requires an enormous amount of work. It is complicated and untested which means it is hard to predict how it will develop. I have instructed Mishcon de Reya who are leaders in data protection and privacy issues. Dealing with HMRC, without going to Court, is costing several hundred thousand pounds.  

I have been advised by my lawyers that because of the novel nature of the case, the costs through to a final conclusion are difficult to predict. I will, of course, share regular updates on how the case is progressing and what stage it has reached together with updates on how much more I need to raise.

In addition to providing me with the necessary funds, your donations will show the amount of public support for this cause. On 10 September 2019, I set myself an initial target of £50,000 to be met within 30 days. The supporters of this case were so generous and enthusiastic that we exceeded this target in just 28 days. Now I am working toward a stretch target of £156,000 to cover the costs of the case work as it progresses toward litigation

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Update 13

Jenny

Sept. 28, 2020

My legal team write to the EDPB about HMRC's response to my Letter of Claim

Today's letter from my legal team to the European Data Protection Board, available on the case correspondence page, discusses Friday's response from HMRC and calls on the European data protection authorities to finally take a position in the Kafkaesque debate on the data protection implications of FATCA and other systems of automatic exchange of information.

Update 12

Jenny

Sept. 15, 2020

HMRC’s reply to the Letter of Claim expected on 25 September

Yesterday HMRC requested, and my legal team granted, an extension until 25 September for HMRC to send us their response to our Letter of Claim asking for adverse party costs to be waived. We hope that HMRC will adopt an approach to my claim that will recognise the public interest of this matter.

Update 11

Jenny

Sept. 4, 2020

Our Letter of Claim is filed with HMRC

As reported by the American Expat Financial News Journal, on Saturday 29 August my legal team filed a Letter of Claim with HMRC under the Data Protection Act. 

Our case was recently discussed in a Bloomberg article entitled 'EU Privacy Law Offers Hope to Foreign Account Tax Law Critics’, and this week the case was highlighted in another piece that appeared in Bloomberg and several other newspapers including the Washington Post

Update 10

Jenny

Aug. 14, 2020

Our case in The Economist

Interest in this campaign is gathering pace. Yesterday, The Economist published an article about the case, entitled ’Should personal financial data be sent to foreign tax authorities?’. A related article appeared this week in The American on the IRS’s public 'naming and shaming’ list, which was mentioned in my legal team's 7 August 2020 letter to the UK’s Information Commissioner and the European Data Protection Board.


It is comforting to see that the arguments developed throughout the case with the ICO are being addressed. Thus, The Economist wrote:


"The [ICO] rejected [Jenny's] claim, even though it accepted that the tax authority did violate some GDPR guidelines. It is not the only European data-protection body to duck the matter […] The European Commission has also pulled punches. After first raising concerns about the data implications of FATCA, it then distanced itself from the issue, even claiming it had not been party to the original negotiations with the Americans, despite a document unearthed by an MEP, and seen by The Economist, suggesting that it was."

Update 9

Jenny

July 8, 2020

Funding needed for appeal of ICO decision

As reported today in the American Expat Financial News Journal, we are actively considering an appeal of the decision by the UK’s Information Commissioner’s Office (ICO). My legal team believes that there are serious questions to be answered, as the ICO refused to discuss the human rights angle of my claim and the data protection case law from the European Court of Justice.

The strength of our arguments and evidence going into Court to appeal the ICO’s decision is not in question. The question has been one of funds. The inability to bring the ICO's ineptitude before the English courts would be a huge hit for us, and a real tragedy for everybody who has been and will be affected by FATCA’s disproportionality.

Update 8

Jenny

June 3, 2020

Our case in WealthBriefing

Today a story about this legal challenge has appeared in WealthBriefing ('Hackers Threaten Global Account-Sharing Pacts, Law Firm Warns’, by Tom Burroughes).

Update 7

Jenny

May 16, 2020

Our case in Linklaters’ magazine

Our case and the issue of data privacy in banking are highlighted as a major development for the legal landscape of the 2020s in the magazine published by Linklaters LLP, which is a member of the Magic Circle of elite British law firms. See page 13

Update 6

Jenny

May 7, 2020

Case correspondence published online

Given the importance of this issue to the debate on data protection and privacy, my legal team at Mishcon de Reya have taken the unprecedented decision of publishing their correspondence, along with a background note summarising the case.

Update 5

Jenny

March 31, 2020

Our case in today's episode of 'How to Keep Your Money'

Filippo Noseda, who is leading my legal challenge against FATCA, discusses the case in today’s episode of the How to Keep Your Money podcast, which is now available on iTunes and Spotify.


Presenter Caroline Garnham talks to Filippo about advocating for our fundamental rights to data protection and privacy in the context of FATCA and the Common Reporting Standard (CRS), as well as other aspects of his career and his role as Visiting Professor at King's College.


The discussion of CRS starts at 14:30 and the segment about my FATCA legal challenge begins at 21:20.


How to Keep Your Money, Episode 15 - 'Private client from a common law and civil law perspective, Filippo Noseda: Mishcon de Reya'

Update 4

Jenny

Dec. 17, 2019

Holding HMRC to account

Despite the extraordinary generosity of our supporters, we still do not have sufficient funds to cover the massive adverse party costs in Court. We've made significant progress and couldn't have got this far without you. This proves the House of Lords’ assertion that this route to justice is ‘expensive and effectively inaccessible to ordinary taxpayers’, even when they have the benefit of crowdfunding from an extremely dedicated community. 


Fortunately, judicial review is not the only path. Because of your immense devotion to this challenge, we have shown that this issue impacts the lives of hundreds of law-abiding people and that the strength of feeling on this is only going to increase over time. The EU shares our view. It is in the government’s best interest to address FATCA’s disproportionality without any further delay.


On 10 September, I set myself an initial target of £50,000 to be met within 30 days. Now I am working toward a stretch target of £120,000 to cover the costs of the case work as my legal team works hard to secure a remedy for us. Every donation helps to raise the profile of this issue.


Please do continue sharing and discussing the page with your friends and family, and on social media. It really does make a massive difference. 


Thank you again for your support,

Jenny

Update 3

Jenny

Nov. 18, 2019

Our case at the European Parliament

On Tuesday 12 November, the European Parliament held a televised debate entitled 'FATCA and its extraterritorial impact on EU citizens'Filippo was asked to discuss our case, and his talk starts at 11:49:50 in the recording of the debate. Other speakers included representatives of the European Commission, the European data protection authorities, the European Banking Federation, the Accidental Americans Association, officials from France and the Netherlands, and the petitioner J.R., whose work led to the European Parliament’s report and resolution dated 5 July 2018


Read more about our case at the EU Parliament in the American Expat Finance Journal and International Adviser.

Update 2

Jenny

Nov. 1, 2019

Our case in the Law Society Gazette

Thanks to your enthusiasm and support for our challenge, Filippo is 'Lawyer in the news'! 

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