Court ruling imminent in case involving 'unintended American' fighting to keep his Dutch bank account
A decision is expected within the next four weeks in a case involving a retired Dutch airline pilot who has gone to court to keep his Dutch bank account, rather than give in to the bank's demands, and enter the U.S. tax identification system.
A hearing in the matter took place last Wednesday (Nov. 25) in a courthouse in Amersfoort, Holland, according to sources in the Netherlands, including the pilot himself, and an article on the NRC.nl wesite.
De Volksbank NV says it is being forced to close the account of Ronald Ariës because he has failed to provide it with certain information, such as his U.S. Tax Identification Number (TIN, usually someone's Social Security number), which it says it requires of him because in addition to being a Dutch citizen, he is also American.
Under a 2010 U.S. anti-tax evasion law known as FATCA, the U.S. requires all what it calls "foreign financial institutions", including non-U.S. banks like De Volksbank, to provide TINs and other information about all of their American citizen account-holders to the U.S. authorities, as it endeavors to ensure that none of its citizens use such institutions to hide assets, in order to evade U.S. income taxes.
For their part, the non-U.S. banks say that the penalties for failing to comply with FATCA are too significant for them to make exceptions of individuals like Ariës. However, the day before Wednesday's hearing, in the latest in a series of recent hearings in Europe on the subject of FATCA, Dutch lawmakers meeting in the Hague said that they planned to seek to engage the U.S., via the European Union, on the issue of FATCA, over its disproportionately burdensome and "Kafkaesque" impact on dual U.S./EU citizens, particularly those whom the Dutch call "unintentional" Americans.
'Unintentional' Americans resist
pressure to engage with U.S.
The problem for Ariës and tens of thousands of other "unintentional" or "accidental" Americans like him in the Netherlands, Europe and beyond, is that he has never considered himself to be American, and strenuously insists that he does not wish to become one – particularly as it would necessarily involve having to pay significant sums of money either to enter into and maintain tax compliance with the U.S., or to enter the system enough to be able to formally renounce his unwanted and until recently, unknown-about citizenship.
Ariës is also adamant that he doesn't see why he should have to pay to enter the U.S. tax system, even if only long enough to renounce his U.S. citizenship, since he has never lived in the U.S. nor received any benefits from it.
Nevertheless, if Ariës and his fellow accidentals don't play by the banks' FATCA rules, they appear destinated, at least for now, to be required to live in the countries in which they have lived their lives until now without being able to obtain or maintain a bank account, mortgage or any of the other basic financial instruments necessary to go about their daily lives. Most experts agree that this isn't possible, in addition to being in violation of an EU law that obliges EU banks to provide a basic bank account to all EU citizens who require one.
As reported, Ariës told the American Expat Financial News Journal last month that he is not happy about having to speak out publicly about his situation, but that he believes someone has to, because "this FATCA thing is hurting everybody, from the top to the bottom [of the income scale]".
Like many other "accidentals", Ariës was born in the U.S. to non-American parents (in his case, Dutch citizens), who returned with him to the Netherlands a year later. He grew up and lived out his life as a Dutch citizen, and remained unaware that anyone might have considered him to be American until 2018, when it emerged as a result of his effort to open a new bank account.
Like some other victims of FATCA, including UK-based "Jenny", who has been challenging the way she says the forwarding of her personal information by the UK, as part of FATCA, violates EU data protection regulations, Ariës says he'd like to part-fund his court case through crowd-funding, although he says that thus far, it hasn't provided him with much.
To see his crowd-funding page, click here.
'Accidental' Ariës’s arguments
During last week's hearing, Ariës’s lawyer, Ellen Timmer, stressed a number of reasons that De Volksbank should not be allowed to close his accounts, according to Jet Barendregt, a member of the Netherlands Accidental Americans association (NLAA), who was present.
These included, she said, the fact that Ariës was “fiscally-resident” in the Netherlands, where he was also a citizen, and thus entitled to have a bank account, under EU regulations; that he wasn’t acting fraudulently by not providing the bank with a U.S. TIN; nor that he or any other “accidental” could automatically to be deemed a “tax evader” simply because they failed to provide their bank with a TIN.
Timmer also argued, Barendregt said, that a Dutch bank like De Volksbank was not obliged to compel its clients to comply with foreign laws, particularly when the foreign country in question, as in this case, wasn’t a member of the European Union; and that the IGA between the Netherlands and the U.S., which is what the U.S. relies on to implement FATCA, was not in itself a “law” but a “treaty” between the two states – and that in the Netherlands, where a legal conflict arises, Dutch law would always prevail.
De Volksbank officials didn't immediately reply to a request for comment.
The bank's roots date back to the founding of the first Dutch savings bank, or "spaarbank", in 1817, according to its website. It went through a series of configurations, including nationalization by the Dutch government in 2013 to prevent it from failing. It remains government-owned.
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