Prof. Jayanth R. Varma’s Financial Markets Blog

A blog on financial markets and their regulation

Have Indian banks gone berserk on FATCA?

Under the US FATCA Act and the related Inter-Governmental Agreement between India and the US, banks and other financial institutions in India are required to report information about accounts held with them by US persons or entities controlled by US persons. All the documents that I have read are clear that this should not affect Indian citizens who are tax resident in India. But I find Indian banks and financial institutions send out notices demanding complex information and threatening closure of accounts to Indian citizens resident in India.

I am not a lawyer, but both Rule 114H(3) and the RBI Guidance Notes are very clear that banks should seek information from the account holder only if any of the indicia of foreign citizenship or foreign tax residence are present. The indicia include:

  • Foreign citizenship or residence
  • US place of birth
  • Foreign address or telephone number
  • Repeating payment instructions to US address or US account
  • Power of Attorney or signatory authority granted to a person with a US address
  • “Care of” or “Hold mail” address is the sole address for the account holder

In the cases that I am referring to, the account is fully KYC compliant, the Indian address and identity documents are on record with the bank, and none of the other indicia are present, and still the FATCA notice is being sent. In one case, where the Indian citizen and Indian resident account holder was threatened with closure of account, I spent several minutes struggling to understand the complex form in which information was sought before realizing that the form that had been sent to an individual account holder was the form relevant for legal entities! Surely, a bank should know whether its customer is an individual or a corporate entity. But this elementary confusion had caused the bank to apply the $250,000 threshold applicable to legal entities for identifying “high value” accounts instead of the $1 million threshold applicable to individuals. It is another matter that even if it was classified as a “high value” account, the FATCA notice should not have been sent because the bank knew that none of the indicia were present.

I think tax terrorism by governments in both hemispheres of the world has become so severe that banks would rather harass their customers needlessly and go berserk with enforcing non existent compliance requirements than risk being held guilty of any shortfall in compliance. Perhaps some customers should sue the banks for sending baseless threatening letters so that banks would start doing what is required by law – neither more nor less.

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