FATCA sows discrimination, unconstitutionality in banking (11)

(US National Archives and Records Administration)
Päivi Pilvepiir
1/20/2015 10:16 AM
Category: Opinion

The Foreign Account Tax Compliance Act, the attempt by the US government to reel in money from its citizens living abroad (including people who may not know they are citizens) has been in the news for at least five years. Now, some six months after implementation, banks are getting serious about enforcement, causing tempers to rise and, in some cases, violating the Estonian Constitution.

FATCA was set up, like all roads to hot offshore places, with good intentions - to wipe out tax avoidance/evasion and presumably to bring a little bit more money into the recessionary, pre-oil-glut US economy of 2008-9. But it's not just tax evaders on tropical islands who are feeling the pinch, but ordinary Americans in this shipshape and above-board Nordic country as well.

Even people who have been in the country since the early 1990s are suddenly getting the cold shoulder and a definite persona-non-grata vibe when they go into banks where they have been doing business, sometimes for years.

But this piece is not just a rant about the long arm of Estonia's powerful protector. Estonian citizens are affected, too, and it's here that some of Estonia's biggest banks have begun acting in an unconstitutional manner.

What has long been considered one of the biggest blessings - American by birth - has in this one case become an onerous burden. At most of Estonia's banks, tellers have been instructed to check customer files for any sign of a connection to the US, such as place of birth. If a customer is flagged, then without preamble or explanation, the teller initiates a series of questions, such as "what is your taxpayer number" - by which they mean the US social security number.

I faced it, too, when I opened an account in August. I had no problem with it. I don't live in Estonia year-round, spending equal time in Marin County, and I do know my "taxpayer number" and surrendered the data, though the whole thing felt surreal.

But there are quite a few folks with no actual connection with the US besides a place of birth. If they want to avoid the wrangle, the burden is on them to sort it all out. That is wrong.

I do understand the banks' view. Because of the intergovernmental agreement between Estonia and the US, they're in panic mode, because they know that eventually there may be a bad apple among the Americans, and if they don't weed them out, they or their parent company could face major penalties on any institutional business they do with America.

But their response has been overweening and discriminatory. Essentially banks have assumed the role of being interpreters of US citizenship law, assuming that a place of birth is equal to citizenship or tax home in the US.

It's ineffective as well, as the tactic would not detect US persons who were born in other places besides the US.

An acquaintance of mine who has a "dirty" Estonian ID card (place of birth: Ameerika Ühendriigid) relates her recent visit to a branch outside Tallinn. In effect, she could not complete the procedure she came to the bank for. Ten minutes became 15, but the teller kept on pressing her for a mysterious taxpayer number. "Has my account been frozen?" my acquaintance finally asked.

The answer was no: at least not yet. But there was a teller service charge for the procedure, and because the bank didn't have the customer's (American) taxpayer number, the teller said the bank could not deduct the €2 for the procedure.

This only hardened the customer's resolve not to cooperate in any way (in fact, the customer had no knowledge of whether she had ever been issued a taxpayer number by the US, a foreign country to her, and could not have cooperated). It later turned out to be a bluff by the teller: the transaction was completed but the customer was let off with a warning that "soon things will get even more difficult" and a demand for a "letter from the embassy."

Oof. It's always painful when organizations controlling money that belongs to you start acting shabbily. But besides setting a poor customer service standard and sowing bad blood, the banks' actions may even be unconstitutional.

Article 12 of the Constitution states, in part: "No one shall be discriminated against on the basis of nationality, race, colour, sex, language [or] origin."

Late last year, Estonia had a news event where one politician (the son of a man born in Estonia) singled out another politician (the son of a person not born in Estonia) based on origin. The first politician, Finance Minister Jürgen Ligi, paid with his job. The outcry was swift and he was forced to resign.

There is no such thing as different grades of Estonian citizen based on where they were born - whether they were born in Russia and naturalized or born in Germany on the way to the US or born in the US somewhere along the long road to freedom and back. (There's only one distinction made: those who have citizenship by birth cannot be stripped of it.)

An Estonian citizen who is not conducting business with the US, who lives in Estonia, pays all taxes there, and is not aware of a connection with the US, should not be required by an Estonian bank to research and supply data from a foreign government at the citizen's expense. Period. To argue otherwise is perverse. If the US wants to track down such persons, and use extraordinary rendition on them, or whatever the terminology nowadays is, that is their prerogative. If the bank wants to track down the data, that is their right.

I know: Estonian Americans are not in an underdog position (Russians have more cause for at least perceived defensiveness or uncertainty), but this is not meant as an exploitation complaint but as a pure intellectual argument: no sort of discrimination should be tolerated. An Estonian citizen is an Estonian citizen.

The fact that the banking sector, being a vital service, is so closely entwined with the public sector (banks issue ID card codes and are a major authentication channel for everything short of an actual digital signature) makes it even more imperative that banks act in a proper, non-discriminatory manner. Insofar as they are vital service providers, they are extensions of the state, and they should not hassle people based on where they were born. It's a different matter if there's clear actvity on the bank statement that signals a liabillity.

The new chancellor of justice will certainly be hearing about this one.

Päivi Pilvepiir files her tax returns properly each year in both countries, one as Päivi and the other as Paivi.

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