This is cross-posted from the Alliance for The Defence of Canadian Sovereignty website.
Welcome to 2015. On January 5, 2014 incoming Chairman Orrin Hatch of the U.S. Senate Finance Committee said:
National Review Online OpEd: It’s Time to Rebuild the Tax Code
Seven guiding principles for comprehensive income-tax reform.
Everyone agrees that the American tax system is broken and in need of reform. It stifles job creation, innovation, and competitiveness. It’s counterproductive, confusing, and a serious drag on the economy. Simply put: Tax reform is no longer an option but an obligation.
With the start of the new Congress, Washington has an opportunity to rebuild the tax code in a way that will spur economic growth, jump-start job creation, and once again restore prosperity to the American people.
To achieve this goal, however, the White House must get in the game and start to lead. This means putting smart policy ahead of poll-tested talking points and working with Congress in good faith. It also means accepting principles established by Congress to lay the foundation for true reform.
The most important principles were those followed by President Reagan nearly 30 years ago when Congress last acted to overhaul the tax code: economic growth, fairness, and simplicity.
Tax reform should promote growth in the economy and reduce economic distortions. It must eliminate the uncompetitive nature of the code and reduce disincentives to work, entrepreneurship, savings, and investment.
Tax reform should reduce tax expenditures to broaden the tax base and simultaneously lower tax rates. A broader base coupled with significantly lower tax rates is the foundation of what would be a much fairer tax system.
We also need a simpler system. Tax reform should reduce complexities in the tax code to lower compliance burdens, increase efficiency, and free up resources for productive activities, including job creation.
While these three principles will be vital to congressional tax-reform efforts, the demands of a 21st-century global economy will require even more, most notably: permanence, competitiveness, promotion of savings and investment, and revenue neutrality.
In today’s world, permanence and competitiveness are key. The code’s lack of certainty hurts job creation, stifles planning, and inhibits economic growth. Permanence would make our code reliable and predictable for American households and businesses.
We need a tax system that no longer threatens to change from year to year, and we need a tax code that is internationally competitive. Tax reform should substantially lower the corporate tax rate and move us to a territorial tax system, with base erosion protections, to ensure that American job creators are on a level playing field with their foreign competitors.
A tax overhaul should also promote savings and investment, which provide fuel for growth. Many aspects of the current U.S. income-tax system discourage savings and investment, which ultimately hurts long-term growth.
Lastly, tax reform should embrace the principle of revenue neutrality. If we’re scouring the tax code looking for ways to squeeze more revenue to fuel government spending, we’re not reforming the tax code, we’re raising taxes. It’s as simple as that. Tax reform should not be used as an excuse to raise taxes on the American people. Any such effort is a needless distraction.
In fact, those who believe that the American people are currently undertaxed should look at historical trends. According to the Congressional Budget Office, federal revenues already exceed historical averages and will remain that way for the foreseeable future. Congress should deal with the problem of excessive federal spending, but it shouldn’t look to tax reform for even more revenue.?
These seven principles should serve as the guideposts for any and all tax-reform efforts. Any serious idea should link back and be relevant to at least one of these seven principles. The best ideas should embrace all of them.
The 114th Congress is set to begin, and I’m hopeful that a path to real bipartisan tax reform will take shape. I plan to help move the conversation forward in the coming weeks and months by engaging with members of both parties and unveiling additional steps.
True success will take more than just talk. It will take hard work, commitment, and, of course, bipartisan compromise. The challenge before us is clear.
— Orrin Hatch is the senior senator from Utah and the incoming chairman of the U.S. Senate Finance Committee.
I believe that Senator Hatch is serious. His statement on January 5, 2015 is a reinforcement of his December 16, 2014 speech in the Senate where he outlined 7 Principles For Tax Reform. His speech included:
“In the coming weeks and months, I plan to reveal additional steps. I plan to involve many of my colleagues on both sides of the aisle, particularly those who will be joining me on the Senate Finance Committee. My hope is that, as this conversation continues, a path toward real bipartisan tax reform will begin to take shape. Of course, it’ll take more than just a talk and discussion. It’ll take hard work, commitment, and, of course, compromise,”
Senator Hatch is the Senior Republican Senator from Utah. (Senator Mike Lee of “FATCA Legal Action lawsuit fame is the junior Senator from Utah.) In December of 2014, the Republican Staff Committee of the Senate Finance Committee issued their report on state of the U.S. tax system. Although the report can be found at the Senate Finance Committee website, I am uploading it this post:
The report is long and comprehensive. At the very end it specifically identifies the “Taxation of non-resident U.S. citizens” as an issue that should be addressed. Although the discussion is minimal, it specifically states:
“… we think it makes sense to tax the individual as a general rule, on on come from U.S. sources.”
After a brief discussion about the necessity of defining “residence”, it goes on to say state:
“In addition an exit tax could be applied when the U.S. citizen is considered a non-resident and no longer subject to U.S. worldwide taxing jurisdiction.”
The Committee specifically identifies the March 2013 report from American Citizens Abroad as a possible approach to achieving this objective. There was considerable discussion of this at the Isaac Brock Society, the Facebook page of Republicans Overseas and American Citizens Abroad.
The submission from American Citizens Abroad is here:
The report from the Senate Finance Committee is almost 300 pages. The suggestion about the taxation of “Non-resident U.S. citizens” comes at the end. I won’t pretend to have read the complete report. I did read enough to see that it is very well researched. The clear inference is that the U.S. tax system is broken, dysfunctional and inappropriate for the 21st century. The clear inference is that the current U.S. tax system is incompatible with a global world. The clear inference is that U.S. tax reform is mandatory and that U.S. tax reform is going to happen! The section about the taxation of “Non-resident U.S. citizens” is Part J of Chapter 6 (which is about International Tax Reform). In other words, the reform of that taxation of “Non-resident U.S. citizens” should be understand in the context of “International tax reform”. For the most part the report discusses International Tax as it applies to corporations. It begins by noting that:
“The international tax regime that was developed in the 1920s has survived for almost 90 years.”
(Interestingly, the U.S. Supreme Court decision of Cook v. Tait that was decided in the 1920s has survived for almost 90 years.)
From that point on, the report recognizes that U.S. international tax is NOT compatible with taxation in the modern world and that it must be changed.
The report (which does consider the tax system of other nations) recognizes that:
- U.S. international tax rules discriminate against U.S. corporations (Yup, how true)
- U.S. international tax rules are out of sync with the modern world
- double taxation should be avoided
- the U.S. should move to a system of territorial-based taxation (of some kind) for Corporations
- the U.S. should move to residence-based taxation for individuals
Understand that the small discussion of U.S. citizens was the last part of the overall discussion of “International Taxation” as it applies to corporations. This suggests the Committee would agree that what is true for “U.S. corporate citizens” is also true of “U.S. DNA citizens”.
Therefore, I interpret the report to be a much stronger argument for residence-based taxation than the small part devoted to “individual DNA citizens” would suggest.
There is reason to be optimistic about:
1. The December 2014 report from the Republican branch of the Senate Finance Committee
2. The fact that Senator Hatch will be the Chairman of the Senate Finance Committee (On January 6, 2015 Time Magazine identified Senator Hatch as an extremely influential member of Congress)
3. The likelihood of Tax Reform – As Senator Hatch says: “Simply put: Tax reform is no longer an option but an obligation”
4. That it may happen more quickly than people think. As I have suggested before:
The good news is that Congress has been considering tax reform. Corporate tax reform is a virtual certainty. As the number of inversions demonstrates, the only way that U.S. companies can compete internationally is if they cease being a U.S. company. Similarly, the only way that a U.S. citizen abroad can compete, is if he ceases to be a U.S. citizen. Contrary to “myth” U.S. citizens abroad ARE subjected to taxation from both the United States and their country of residence. Contrary to myth, U.S. citizens abroad are often subjected to double taxation. Contrary to myth, U.S. tax laws make it very difficult for Americans abroad to do meaningful financial and retirement planning. The controversy surrounding London Mayor Boris Johnson provides an excellent example of “double taxation”. The good news is that this message is starting to get through. The message is starting to be heard. The message is starting to be analyzed. As the message from Republicans Overseas indicates, the Senate Finance Committee has begun to consider the issue of “extra-territorial taxation”.
We are at an auspicious moment. Tax reform is on the agenda AND the Republicans have control of both the Senate and the House.
Furthermore, Senator Hatch, will be Chairman of the Committee, and he believes that tax reform is too important to be held captive to partisan politicians.
Senator Hatch has stated that he will work with and listen to anybody!
The loneliness and helplessness of Americans abroad – So far nobody has listened to them
I have watched Americans abroad suffer since 2009. Depending on when one had an “OMG” (Oh My God) moment Americans abroad have been suffering for as long as six years. Although they have sought help, no help has been forthcoming. It’s fair to say that Americans abroad (as a group) have failed to find support from:
1. The Government of the United States – For the most part Americans abroad have been “unpaid ambassadors and apologists for the U.S.A.” Many deserve a medal for their patriotism. What did they get in return? FATCA, the “FBAR Fundraiser” and the implementation of “extra-territorial taxation”. The U.S. can say that “extra-territorial taxation” and FBAR have always been the law. But there was NO education and NO enforcement before 2009. For all intensive purposes, what the U.S. calls “citizenship-based taxation” – AKA “extra-territorial taxation” – did not (in practical terms) exist until 2009.
2. The Government of Canada (or whatever your government is) – Participation in the IGAs was the equivalent of helping the U.S. identify those who it wants to claim as its citizens and turning them over to the U.S. By signing an IGA, The Government of Canada has allowed the U.S. government to claim Canadian citizens as U.S. tax subjects. (A philosopher might ask: What is the meaning of Canadian citizenship?” But, I won’t ask that question.)
The Government of Canada does NOT seem to understand that U.S. taxation of Canada citizens residing in Canada allows the U.S. to impose a “capital tax” on Canada!
3. The Media – For the most part the media has not supported those unfortunate souls with a “U.S. place of birth”. They have been told to “come clean“, etc. (That said, there have been some exceptions and the media is slowly coming around. As one example, consider the fine work done by Laura Saunders of the Wall Street Journal. Incidentally Ms. Saunders came from New York to attend the May 2014 ACA Global Conference on citizenship-based taxation. Patrick Cain has also done a fine job of framing the issues of U.S. “extra-territorial taxation” and FATCA.)
4. The cross-border tax compliance people – Very very few have provided responsible and competent counselling. Many have been more dangerous to your well being than the U.S. Government. You are undergoing severe emotional trauma. They are in the business of completing tax returns.
5. Friends and family – They can be excused. The problems can be understood only by those who have lived them. There is NO doubt that U.S. tax policies affect the marital relationship between a U.S. citizen and a non-citizen (AKA “alien”) spouse.
6. Elected representatives in the U.S.- Americans abroad have ZERO representation in the U.S. They have no defense against what Jackie Bugnion of ACA described as the “series of legislative events” that have made it impossible for U.S. citizens to live abroad.
7. Elected representatives in Canada – For the most part (with some notable exceptions and you know who the exceptions are), your MPs have NOT been helpful (taking the twin positions that the U.S. is free to define who its citizens are and to control their lives in any way it chooses).
8. The “Various Political Parties Abroad” – Their loyalty to the current U.S. administration has placed them in a position where they are NOT willing to “Boldly Oppose” unjust laws and policies.
Although U.S. “citizenship-based taxation” may have always been the law, it was neither communicated nor enforced prior to 2009. The same is true of the FBAR requirements. Therefore, in actual practice, U.S. citizenship-based taxation has “not always been the law” but should be considered to be a “new law”. FBAR should be considered to be a “new law”. FATCA is the “enforcement mechanism” of the new law of “place of birth taxation”. FATCA Hunt – AKA the hunt for those with a U.S. place of birth is beginning.
Those who have been targeted by these laws have felt a combination of terror, resentment, betrayal and (mostly) helplessness.
You are never “helpless” if you “empower yourself” by helping yourself!
You have empowered yourselves by launching the FATCA lawsuit against the Government of Canada. The FATCA lawsuit is an incredibly important first step in protecting those Canadians with a “U.S. place of birth”. You have set an example to ALL those, with “a U.S. birthplace” (regardless of their country of residence). It’s incredible that this lawsuit HAS been funded without a single “deep pocketed donor”.
Nevertheless, anger and frustration continues. The Canadian lawsuit is one way of channeling that anger and frustration in a productive way. The Canadian FATCA lawsuit has been a way to turn the negative effects of anger and frustration toward a positive purpose.
That said, the FATCA lawsuit cannot (by itself) force a change in U.S. law. Ultimately, changes in U.S. law must come from the U.S.
It’s time to participate in the changing of U.S. law
It is believed that there are approximately 7.5 million Americans abroad. This is larger than the population of many U.S. states. You have the right to be heard. You have the obligation to be heard.
The time has come to harness that anger and frustration and channel it into a massive effort into getting the U.S. Senate Finance Committee to recommend, as part of the overall package of tax reform, that the U.S. move to “residence based taxation“. Both the Republicans and Democratic political parties show signs of making tax reform a “partisan issue”. Tax reform cannot be allowed to be a “partisan issue”! Fortunately Senator Hatch has made it clear that “tax reform” is NOT and CANNOT be used by political parties for political advantage.
Therefore, I suggest that you:
1. Encourage all politicians to recommend residence based taxation; but more importantly
2. Actively collectively and purposefully (as an organized group) educate the Senate Finance Committee. The goal is influence it to recommend residence based taxation.
Your “elected representatives” are NOT likely to be helpful. (They just want to be elected.) The Senate Finance Committee is in desperate need of your help! (It is actually trying to do something for the good of the country.) It needs to understand the issues. It needs to be educated.
Nobody CAN educate the Senate Finance Committee better than those directly affected by this injustice! Nobody WILL educate better than those directly affected by this injustice!
To put it another way:
I suggest that Americans abroad commit themselves to the goal of becoming an active participant in the deliberations of the Senate Finance Committee.
They should NOT be satisfied with being a passive observer. As a group you have the commitment, the resources and the motivation. The Committee needs to understand the true effects of U.S. laws governing Americans abroad and how those laws are forcing people to renounce their U.S. citizenship. The Committee needs to understand how and why these laws are bad for its valuable “Ambassadors (citizens) abroad”. The committee needs to understand Roger Conklin’s arguments for why these laws are bad for America.
Educating the Senate Finance Committee will be much more effective than writing your Congressman (although you should anyway) because:
- individual Congressman/women will NOT understand the issues (how long has it taken you to truly understand all of this?)
- they have no incentive to listen to you (they just want to be elected).
On the other hand, the Senate Finance Committee is interested, eager to learn and willing to learn!
The Senate Finance Committee – The most influential voice for Tax Reform
The composition and membership of the Senate Finance Committee may be found here.
You will see that Americans abroad have a fantastic (once in a lifetime) opportunity to educate a variety of Senators.
As Justice Black ruled in the Afroyim case:
Citizenship is no light trifle to be jeopardized any moment Congress decides to do so under the name of one of its general or implied grants of power. In some instances, loss of citizenship can mean that a man is left without the protection of citizenship in any country in the world—as a man without a country. Citizenship in this Nation is a part of a co-operative affair. Its citizenry is the country and the country is its citizenry. The very nature of our free government makes it completely incongruous to have a rule of law under which a group of citizens temporarily in office can deprive another group of citizens of their citizenship. We hold that the Fourteenth Amendment was designed to, and does, protect every citizen of this Nation against a congressional forcible destruction of his citizenship*, whatever his creed, color, or race. Our holding does no more than to give to this citizen that which is his own, a constitutional right to remain a citizen in a free country unless he voluntarily relinquishes that citizenship.
The next question is:
“How is this educational campaign to be organized? What will it consist of?”
“Seize The Day!” – You are the only people who can and who will!
*P.S. You might find this interview interesting. It is an excellent discussion of how U.S. “extra-territorial taxation” resulting in “residence-based life control” is forcing Americans abroad to renounce U.S. citizenship.
If the U.S. can be persuaded to abolish “extra-territorial taxation”, based on “place of birth”, many of the problems will be solved.