FATCA & HMRC: breaching my human rights to data protection and privacy
FATCA & HMRC: breaching my human rights to data protection and privacy
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Latest: Jan. 13, 2022
Send a message to the European Commission: Enforce the GDPR!
The European Commission has still not dealt with the issues raised in any of the FATCA petitions, the first of which was submitted six years ago and supported by a 2018 study entitled FATCA legislati…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.
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.
- 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
Support the European Parliament petitions on FATCA
For years the European Parliament has demanded that the European Commission and national data protection authorities (DPAs) put an end to the GDPR violations caused by FATCA in the EU.
Under FATCA, financial institutions across Europe must collect the sensitive personal data of bank account holders and transfer them to the IRS independently of any indicia of tax evasion.
This bulk processing of information, which resembles the secret practices revealed by Edward Snowden, exposes ordinary citizens to the risk of hacking and identity theft.
EU data protection experts advised the Commission that the measure is disproportionate, but the Commission and EU Member States have been turning a blind eye in order not to displease their US ally.
However, on 29 October 2021, Congress rejected the introduction of a domestic version of FATCA after Senators, Congressmen and even the American Bankers Association raised the alarm to defend the fundamental right to financial privacy of US citizens and scorn the poor data security record of the IRS.
Because of the costs of implementing FATCA, banks across Europe have been refusing to open bank accounts for Americans, denying them access to basic financial services.
Jan. 13, 2022
Send a message to the European Commission: Enforce the GDPR!
The European Commission has still not dealt with the issues raised in any of the FATCA petitions, the first of which was submitted six years ago and supported by a 2018 study entitled FATCA legislation and its application at international and EU level and the European Parliament's Resolution on the adverse effects of FATCA, which passed by a huge majority mandate.
This is despite the US Congress rejecting the introduction of a domestic version of FATCA in October 2021 after Senators, Congressmen and even the American Bankers Association raised the alarm to defend the fundamental right to financial privacy of US citizens and scorn the poor data security record of the IRS.
By leaving your name or initials as a comment when you make a pledge to this case, you are sending a message to the European Commission to finally deal with the concerns raised in these petitions.
Jan. 7, 2022
Webinar recording now available
A video from the webinar held by my legal team and their colleagues on 7 December 2021, entitled ‘FATCA - Is privacy catching up? A lesson from recent court cases’, is now available to view here.
Nov. 22, 2021
My court case in Tax Notes
Today the journal Tax Notes has published an article by Robert Goulder entitled ‘The FATCA Wars: Jenny Goes to Court’. He points out that my case‘illustrates how HMRC and the UK government’s Information Commissioner’s Office have neglected the country’s taxpayers as far as their data protection rights are concerned’. Recently, HMRC’s own annual report for 2020-2021 has coded their data security as a ‘red’ risk – the highest level of risk (see page 95).
Oct. 29, 2021
July 5, 2021
May 11, 2021
Industry news about our campaign
News about our campaign’s progress was circulated yesterday to lawyers, accountants, and trustees worldwide through their professional body, STEP.
Filippo Noseda, who leads my legal team, told STEP :
'For almost five years, the European Commission and EU Member States, as well as the UK, have been ignoring calls from campaigners to address the breach of fundamental rights caused by automatic exchange of information. Now, after incessant lobbying, the European Data Protection Board acknowledged the problem . . . an invitation by the EU's data protection watchdog to review automatic exchange of information agreements with third countries, including the US, cannot be ignored'.
April 19, 2021
A substantial victory at EU level
This legal challenge has made significant progress. As explained on my legal team’s FATCA pages, last week the European Data Protection Board issued a statement in which it acknowledges the concerns we have raised and “invites the Member States to assess and, where necessary, review their international agreements that involve international transfers of personal data, such as those relating to taxation (e.g. to the automatic exchange of personal data for tax purposes)."
Feb. 24, 2021
Our campaign in the news
In addition to recent coverage of this legal challenge in TIME magazine, this month Filippo has been featured in the American magazine Family Wealth Report in relation to this case and the campaign against the Common Reporting Standard. The article mentions the latest letter sent on 17 February 2021 to the European Commission to urge the European Data Protection Board to ‘intervene in the debate concerning the compatibility of FATCA and other systems of automatic exchange of information on individuals' fundamental rights to data protection, data security and data privacy’. The letter was also covered this week by the American Expat Financial News Journal.
Dec. 9, 2020
Nov. 11, 2020
Filippo at the European Parliament
Yesterday afternoon J.R., who presented a petition on FATCA before the European Parliament, and Filippo Noseda, who leads my legal team, spoke once again at a hearing about the petition, which is the inspiration behind my legal challenge. Filippo presented research revealing that the Commission misled the European Parliament about the depth of their involvement in FATCA and their data protection concerns about FATCA. The session is available to view online and starts at 17:46:10. These findings are also conveyed in a letter sent yesterday from my legal team to the Commission, which is available to read on the case correspondence page.
Nov. 10, 2020
Our case in Spear’s magazine
Today, Spear’s magazine published an article about the case, entitled ‘Inside one Mishcon tax lawyer’s plan to take on Fatca’ by editor-at-large Alec Marsh.
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.
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.
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.
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."
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.
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).
May 16, 2020
May 7, 2020
March 31, 2020
Our case in today's episode of 'How to Keep Your Money'
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.
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,
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.
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'!
Oct. 12, 2019
National press coverage of our challenge so far
Financial Times https://www.ft.com/content/e59ff84c-d56a-11e9-a0bd-ab8ec6435630
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