On 29 November I submitted a Freedom of Information request to the ATO requesting copies of all data about my accounts that was sent to the IRS under FATCA. The fact that I had to ask is outrageous – account holders should be automatically notified when their data is sent overseas. But, current Australian privacy law does not require any notification.
Thursday I received a phone call from the ATO explaining that they had found nothing. The phone call was quickly followed by an official letter. This was actually what I had expected as none of my banks or financial institutions had sent me any request for clarification of my US status. Since I hadn’t provided my US Social Security Number to any bank, and had not been asked to complete a W-9 or equivalent, I assumed that my banks had not identified me as a US citizen. Because the ATO found no records to disclose, the official form of their response was a refusal to provide the documents I requested. Here is the relevant portion of their response:
The ATO has 30 days to respond to an FOI request. Due to the holidays, they asked me for a 30 day extension, which I granted. However, they ended up responding in 16 days, so the extension was not necessary.
Call to Action:
Now that we know what response we’ll get from the ATO when NO data has been sent to the IRS, I’d like to see how the ATO responds when someone’s data HAS been sent to the IRS. So, consider lodging your own FOI request – particularly if you have been asked by your bank to submit a W-9. It took me about 20 minutes to lodge my request – and most of that was figuring out exactly what to ask for.
- Download the ATO’s FOI form here.
- Complete the personal details requested (postal and email addresses, tax file number, date of birth). If you control another entity (company, SMSF), consider including the details as well, especially if you know that entity has already been identified by your bank as “US Reportable”, although it might be easier to just send in a separate request for each entity.
- Other bits on the form: I ticked the box at the top to agree to receive documents outside of FOI if available – in my case it didn’t make a difference. I’m not sure whether that would apply if there was data to release. And I asked for digital access to documents. For time period, I put 1 Jan 2015 to the current date (though 31 Dec 2014 might be better as the first FATCA data, sent in Sept 2015, was as of the prior 31 December). I ticked no to the draft document question and left the contact name blank.
- Add a description of the data you want. Mine is shown in the response above (modify if needed to include any entities you control and want to ask about):
All records of any Australian financial accounts (“U.S. Reportable Accounts” as defined in the FATCA IGA) registered in my name that have been sent to the IRS under the FATCA IGA. I am requesting this information for both the data that was sent to the IRS in September 2015 (as reported in The Australian on 25 Sept. 2015), and the data that was due to be sent to the IRS by 30 Sept. 2016.
- Email the completed form to FOI@ato.gov.au.
One advantage of asking the ATO rather than your bank is that the ATO should not be able to communicate back to your bank that you have requested this information – so you’re not flagging to your bank that you think you should have been reported. And the ATO is supposed to be only a conduit for the FATCA information – they don’t tell banks who to report and only pass on the data that is provided by the bank.
If you do submit an FOI request, please let us know in the comments – and pass on the results.