FATCA factor. How can American law relate to any Russian
Recently, public attention was attracted by a remarkable dialogue that took place between the head of state and the president of Sberbank - more precisely, a small fragment of this dialogue. V.V. Putin strictly asked G.O. Gref, why the institution entrusted to his care does not work in the Crimea. Looking down, German Oskarovich complained that commercial activity in the newly acquired territories threatens Sberbank with losses due to international sanctions. Earlier, in an interview with German journalists, Mr. Gref stated even more definitely that from the point of view of the global financial system, Crimea is Ukrainian territory and there is nothing for the Russian bank to do. The same thoughts were voiced by Mr. Gref at the annual meeting of Sberbank shareholders in May. From which it follows that the Constitution of the Russian Federation on the State Sberbank does not apply.
Probably, V.V. Putin knew about this point of view and wanted to hear it first hand. The president of the country was clearly displeased by the heard, but this episode is unlikely to somehow affect the status of German Oskarovich. Unfortunately, it is impossible not to recognize in the words of the head of Sberbank a fair share of homey and savvy truth. The person responsible for the national piggy bank does not have the right for the sake of 2-x regions, where the bank is not present, to risk stable work in 89-ti subjects of the Federation, where he has millions of customers and depositors.
As for state policy and national interests in the financial sphere, is it worth it to reproach Mr. Gref with their cynical skimming, since this same policy often conflicts with these very interests. A vivid illustration of what is story accession of the Russian Federation to the American FATCA protocol.
“Washington Uncle Sam has completely let loose”
Five years ago, the United States passed the Tax Discipline Policy on Foreign Accounts - the Foreign Account Tax Compliance Act, or FATCA for short. According to this legal act, foreign financial institutions are required to automatically provide information about their US customers to the Internal Revenue Service. According to the text of FATCA, credit organizations around the world, with 31 in March 2015, are obliged to inform the IRS about the accounts of US residents so that they cannot evade the sacred duty of the taxpayer.
Well, what is the audacity - to extend the action of national law to the entire planet! Russia responded to the infamous encroachments of overseas "partners" properly. The Russian Ministry of Foreign Affairs, in response to a request from the Association of Russian Banks, issued a letter in which it considered inadmissible "the conclusion by Russian banking institutions of any direct agreements with the US Internal Revenue Service regarding compliance with the requirements of the FATCA law." The Ministry of Finance of Russia in a letter from 24.04.2012 No. 03-08-07 noted that the mutual exchange of information with the American side should be built strictly within the framework of the already existing Agreement between 17 and June 1992 on avoiding double taxation, and changing Russian legislation to implement FATCA requirements are completely excluded.
But "never say never." Non-participation in FATCA for Russian banks threatened to result in risks associated with possible sanctions by the IRS and foreign financial institutions.
In particular, the compulsory withdrawal of 30% of the amount of international bank transfers, while the non-aligned themselves risked earning in the international community the reputation of potentially risky counterparties.
Not to mention the fact that the global banking system is critically dependent on the US Federal Reserve Service and overseas financial infrastructure. Almost all interbank transactions go through correspondent accounts in US banks, which the IRS can easily block if they wish. Familiar scheme: will not buy lottery tickets - turn off the gas.
Let everyone in - do not let anyone out
It is not surprising that the initial reaction of the Russian authorities regarding the prospects for joining FATCA in the form of a sovereign repentance was replaced by a proud silence, and then by feverish activities designed to legitimize the subordination of the Russian banking system to the American tax department.
Well, they weren't like that. In 2014, the United States fined French bank BNP Paribas $ 8,9 billion for violating sanctions against Iran, Sudan and Syria. And although BNP Paribas did not violate any French laws, the bank's management had to pay a huge fine, and in addition to dismiss 13 top managers with a "wolf ticket". Switzerland, whose financial system flourished thanks to strict banking secrecy, tried to balk. But after the Americans imposed multimillion-dollar fines on the largest Swiss banks, forcing the oldest of them, Wegelin & Co, to close, the authorities of the alpine republic had to yield.
Interestingly, the sensational story of the arrest of FIFA officials in Switzerland was made possible thanks to the information obtained in the framework of the FATCA requirements.
Then the Russian authorities pointed to the inadmissibility of expanding the jurisdiction of US justice to other countries. Indeed, not one of the arrested sports functionaries was a US citizen, their alleged crimes did not occur in the territory of America, however, the fact that the calculations for suspicious transactions were made in dollars was enough to initiate the case and arrest. But outraged by the American arbitrariness, it would be worth remembering about his own consent to control over the domestic financial system from the US departments. And whether this consent was accompanied by an enthusiastic gleam in the eyes or a gnashing of teeth was not the point.
It is important that in June 2014 a law was passed No. 173-ФЗ “On peculiarities of conducting financial transactions with foreign citizens and legal entities and amending certain legislative acts of the Russian Federation”, allowing Russian banks to transfer data on American taxpayers to the IRS. It is noteworthy that the law was signed by the president on the same day when it was approved by the Federation Council. Enviable efficiency, if not rush. For example, Italy joined FATCA only in July of this year. After the law was passed, the head of Rosfinmonitoring, Yury Chikhanchin, noted that FATCA can be considered as a sanction tool. Does it mean that Russia essentially joined the sanctions against itself? It turns out that way.
But is it worth “putting pressure on the principle”, focusing on the problem of banking structures and their American clients? Perhaps it is not worth it, if the problem was actually of a narrow sectoral nature. But joining FATCA opened Pandora’s box, from which a string of misfortunes climbed, the consequences of which are difficult to predict. Let's start in order. Today, more than 90% of Russian banking organizations have joined FATCA, having established contact with the American tax authorities. Meanwhile, despite the above risks, many of them - primarily from the medium and small ones - are ready to refuse to cooperate with the IRS, because they have to incur multimillion-dollar costs. However, Russian law does not provide for such a possibility.
Fearing penalties, Russian banks in turn began demanding structures from related sectors - microfinance organizations, non-state pension funds, brokers, insurance companies - to join FATCA, threatening more tight control or even closing accounts. According to expert estimates, 20-30% of the client base of banks can be recognized as non-aligned financial institutions, for the first time they will have to report on them in March 2016.
The domino effect
Further more. In May of this year, some Sberbank clients began receiving letters with a proposal to report on foreign citizenship, residence permit or tax residency status in other countries. According to RBC news agency, a questionnaire was attached to the letter, which must be submitted to the bank by June 25. According to the Guberniya portal, recently Khabarovsk residents when applying to credit institutions (MTS Bank, Asian-Pacific Bank, Promsvyazbank, Far Eastern Bank) have been asked about ties with the United States. In particular, banks request information on the availability of citizenship or residence permit in foreign countries, a mobile phone number registered in the United States, as well as registration address in the United States, if any, and data on remittances to accounts in US banks. Those who do not want to answer may be denied service.
An incredible (until recently) story happened to the correspondent of the St. Petersburg edition of "812". In the municipal center, where she came for a so-called children's or preschool card, for which the city government charges budget funds for the purchase of children's things, the woman was asked to fill out a questionnaire regarding her possible relationship with the United States. It turned out that this is an initiative of the Bank St. Petersburg, which issued the card. While the objector is not threatened. But the first step is the hardest. In the northern capital, a similar profile has recently been offered to car owners who issue discount cards to LUKoil gas stations. Petersburgers, who are going to buy an apartment and make a deal through the bank, began to face similar requirements.
But how so? Indeed, the law number 173 explicitly states that neither the citizens of the Russian Federation can collect or transfer information, unless they do not have dual citizenship or a residence permit in another state, nor Russian legal entities, except for those with more than 10% controlled by non-residents. That's right. However, a little higher there is a fad according to which, “financial market organizations take reasonable (how? - MZ) and available under the circumstances (which ones? - MZ) measures to identify among those who have concluded (concluded ) with the organization of the financial market a contract providing for the provision of financial services (hereinafter referred to as the client), persons to whom the foreign state legislation on taxation of foreign accounts applies ... ”
That is, on the one hand, the law does not apply to a Russian citizen, but on the other, how to find out: how chemically pure this citizen is, whether it contains extraneous suspicious impurities.
A dilemma like that put by Ostap Bender in front of his players: to take the money, but not to beat. Banks do not suffer from the problem of choice and take “measures” based on their specific ideas about good and evil. And since potentially any resident of Russia who came into the view of a bank can wear a wide leg or handbag in addition to a Russian passport, suppose a green card or a wad of dollars means that it is of obvious interest to Uncle Sam. So, in addition to the hypothetical need to prove that you are not a camel, every Russian should be prepared to convincingly prove that he does not owe the US budget anything. The situation is similar with enterprises and companies. Such a kind of analogue of the former "was not, was not, did not participate."
Predict the development of events is difficult.
Americans, for example, have no difficulty finding any reason to use the provisions of Law No. 173 to get information about any Russian enterprise and, if they wish, to block oxygen, because the banks through which it conducts its operations are controlled from overseas.
Only before such a state of affairs existed de facto, and now it is still confirmed de jure. Should we expect from our arch-friends these or similar dirty tricks? Who knows them. What is clear is that it is pointless to admonish or frighten our bankers: they serve their masters. The Russian authorities are left to console themselves with lines of a ballad from the well-known story of AK. Tolstoy:
Do not frown, mistress,
Look more fun:
You yourself let in
Merry guests!
Look more fun:
You yourself let in
Merry guests!
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