Opposition nominates 2 members …WE WANT JSC ON FATCA

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Opposition Chief Whip, David Lee, has written to Leader of Government Business, Camille Robinson-Regis, nominating two Opposition Members to sit on a Joint Select Committee (JSC) to examine the FATCA legislation now before Parliament.

The Opposition has proposed MPs, Dr. Bhoe Tewarie, and Dr. Tim Gopeesingh to be members of the JSC, which the Opposition said, was originally proposed by the Government with respect to the legislation.

The letter dated December 12, was delivered on Monday.

The Opposition has issued a response to the proposed legislation which is published below:

THE PROPOSALS

Throughout the debate of the FATCA legislation, the Opposition has remained steadfast in its call for a Joint Select Committee of Parliament to conduct a full review and to seek input from stakeholders with regards to potential amendments to the legislation.[1]

The Leader of the Opposition was the first to contribute to the FATCA Legislation debate on 9 September 2016. She called for the bill to be sent to a JSC during her contribution. The Government agreed to the JSC, then without explanation rejected the JSC for reasons which cannot be ascertained.

The Opposition has remained committed to passing the FATCA legislation provided that amendments were made to several provisions in the Bill which:

Are not required under the Inter- Governmental Agreement with the US (IGA);

Give wide and intrusive powers to the Minister/politician which are not required under the IGA;

Give politicians future power to make laws affecting privacy and other rights without parliamentary disclosure, debate or approval; and

Are not to be found in like legislation of Jamaica, Bahamas, and Barbados.

The herein contained amendments and arguments supporting the Opposition proposed amendments to the FATCA legislation have been presented by the Opposition in the public domain through multiple fora:

· The Opposition’s parliamentary contributions to the FATCA debate;

· Several press releases by the Opposition Leader;

· At press conferences held by the Opposition; and

· By advertisement published in the daily newspapers on 23 September 2016 describing primary concerns the Opposition had with respect to the Bill as proposed by the Government.

It is still unclear why the legislation was not sent to a JSC as recommended in September. A JSC is a proper forum to resolve issues as complex as are found in this legislation.

U.S. officials have indicated that the nation has until the end of March 2017 to pass this legislation and a JSC would be able to complete its work in time and with far less controversy to meet the most recent deadline.

The Opposition is the position that the matters contained herein should be made subject to a Joint Select Committee of the Parliament rather than being rushed through by a Government unwilling to listen to or consider amendments intended to protect our citizens.

2. THE GOVERNMENT’S POSITION

Amendments spoke of by the Government during the 23 September 2016 sitting of Parliament do not sufficiently address the concerns raised by the Opposition. Those amendments have been reviewed and media, political analyst and others would note that the Opposition draft amendments vary significantly from the Government’s proposed amendments.

The continued misrepresentation of the Opposition’s position by the Government is pure politicking in its lowest form. It appears that Government MPs are unable to address their minds or contributions to the substantive matter at hand which is to create legislation which appropriately balances extraordinary access to citizens’ financial information with U.S. tax evasion concerns.

As with the Security Services Agency (Amendment) Bill, 2016, the Opposition amendments seek to balance private rights and state concerns with the provision of an appropriate level of oversight (in this case primarily through Parliament).

Citizens are reminded that when the Opposition attempted to protect citizens’ rights during the SSA debate, the Government with little or no reasoning rejected 61 amendments which were based on international best practices. The Opposition is fearful that once again the Government will simply sweep its concerns under the rug.

3. EXPLANATION OF THE AMENDMENTS CLAUSE BY CLAUSE

Arrangement of Clauses

The titles of the individual clauses have been updated and new clauses have been added which correspond to the amendments found below.

Preamble

A number of small typos are fixed. Additionally, statements of law with regard to Sections 5 and 13 of the Constitution are removed as unnecessary.

NEW Clause 1A

The bill did not previously contain a clause indicating when it will come into effect despite deadlines set and reset by U.S. officials. U.S. officials have stated that the legislation must come into effect by the end of March 2017. In order to meet this requirement, Clause 1A has been added to ensure the bill is proclaimed and comes into effect prior to the March 31 deadline.

Clause 2

The wording of this Clause was incorrect and has been fixed to reflect the standard language used in legislation to indicated that an act inconsistent with the Constitution shall have an effect.

Clause 3 – “competent authority”

The opposition has consistently called for the removal of the political directorate (Minister) from the control of the process.

Clause 3 – “declared agreement”

This Clause has been updated to reflect the amendment which requires any tax information sharing agreement to be approved by Parliament prior to becoming subject to the Act. Previously the President would act on Cabinet’s instruction to declare an agreement for the purposes of the act – such a system does not ensure adequate protection of citizens’ rights.

Clause 3 – “former Act”

The name and citation to the former Tax Information Exchange Agreement Act were incorrect.

Clause 3 – “Minister”

The definition incorrectly defined the Minister as a Member of Parliament to whom finance is assigned. However, the Minister may also be a Senator, so this Clause was corrected.

Clause 3 – “tax information exchange agreement”

The unsuitably vague term “other information” was removed. The purpose of a tax information exchange agreement is to share financial information and supporting documentation. The amendment reflects this purpose.

Clause 3 – “the Board”

This definition was updated to include an entity which may replace the BIR as the Government has indicated that the lifespan of the BIR is limited.

Clause 4

The Opposition position is that the Board of Inland Revenue is the appropriate party to act under the FATCA legislation to prevent political interference.

Thus, in the amendment, the BIR is named as the competent authority to act with respect to any tax information sharing agreement declared under the Bill.

This Clause is required because there are existing agreements which refer to the “competent authority”.

Clause 5
In order to ensure proper parliamentary oversight of future tax sharing agreements, affirmative resolution of Parliament is required prior to any agreement becoming subject to the act. The government has indicated that future agreements will be signed but have not said (because they do not know) the specific form such agreements will take.

Future agreements may affect citizens’ privacy rights in ways not presently contemplated. The Intergovernmental Agreement (IGA) with the United States affects citizens’ privacy in a certain manner.

However, we cannot know whether future agreements with other countries will affect the same rights in the same way and because of this the position must be protected by parliamentary oversight.

For example, in an ever changing world, T&T may have to sign an agreement with China in 6 years and the Chinese may want more information about persons than the United States – Cabinet should not be permitted to require the sharing of this new/additional information without parliamentary oversight.

Such protection will ensure that if different/additional infringements to privacy rights are required then Parliament approves the sharing of such information.

Previously the President would act on Cabinet’s instruction to declare an agreement for the purposes of the act. This is not required by the IGA with the US. It gives blanket approval for any future agreement signed by any government to become law without disclosure, debate or parliamentary approval. These types of agreements breach privacy rights and can give any government the power to freeze or seize bank accounts, confiscate property or impose penalties on persons. It is, therefore, essential that they are made subject to affirmative resolution of Parliament before enactment into law.

NEW
Clause 5A

This new Clause will make any change to an existing tax sharing agreement subject to Parliamentary oversight. A modification to an existing agreement may affect citizens’ privacy and as such it must be subject to Parliamentary oversight.

Clause 6

This Clause is amended to reflect the Opposition’s position that the BIR is the appropriate body to give effect to the tax information sharing agreements that have been declared pursuant to the Act. References to the politician (Minister) have been removed.

Clause 7

The original subclauses (1) and (2) are not required by the IGA. We know of no other clause in any legislation that gives such a power and there can be none because the nature of the power conferred is contrary to the rule of law. It allows the minister to exercise powers where the preconditions for the exercise of the powers have not arisen.
The purpose of this Act is to allow for the authorities to prevent tax evasion.

Fundamental rule of law principles would dictate that before the minister could make a request for information regarding anyone there must be prima facie evidence that satisfies some threshold criteria that a person is involved in tax evasion. It is only then that the minister could seek to make a request for information from the authorities.

What this clause does is to allow for the minister to exercise the powers to make a request “notwithstanding that the circumstances, if any, necessary under that Act for the exercise of the power may not have arisen” This is in breach of the rule of law and the protection of law and has the potential for abuse.

Former subclause (3) has been amended to make clear that the BIR has the power to act to provide or request information in compliance with tax information sharing agreements that have been declared pursuant to the Act.

Clause 8

The original Clause 8, when read together with original Clause 7, strips our citizens of any protection that the law may give to them and more importantly it overrides the protection afforded by existing laws which are not identified.

There are the procedural protections that would have vested rights in citizens and if information is to be requested by a foreign country and is to be supplied by the BIR it should be supplied in accordance with law as presently exists and if the request cannot cross the threshold of enacted laws the information should not be provided. The enactment of this provision is simply an erosion of our characteristic as a sovereign democratic state. Why should a foreign country have to cross a lower threshold to obtain a citizen’s personal information than any law enforcement authority in Trinidad?

For the foregoing reasons, subclause 8(1) has been removed.

The penalty for subclause 8(2) has been increased in line with the penalties for disclosing private information under the Interception of Communication Acts. 23. The deterrent effect of the original clause is not believed to be strong enough.

Clause 9 – “national”

The definition is updated to clarify that it is nationality through citizenship.

Clause 10

This section has been amended to remove the unsuitably vague term “substantially similar tax”.

Clause 11

There are the procedural protections that would have vested rights in citizens and if information is to be requested by a foreign country and is to be supplied by the BIR it should be supplied in accordance with law as presently exists and if the request cannot cross the threshold of enacted laws the information should not be provided.

Several subclauses were amended to reflect this.

Clause 12

Some small typos were corrected.

Clause 13

There are the procedural protections that would have vested rights in citizens and if information is to be requested by a foreign country and is to be supplied by the BIR it should be supplied in accordance with law as presently exists and if the request cannot cross the threshold of enacted laws the information should not be provided.

This clause was amended to reflect this.

Clause 14

There are the procedural protections that would have vested rights in citizens and if information is to be requested by a foreign country and is to be supplied by the BIR it should be supplied in accordance with law as presently exists and if the request cannot cross the threshold of enacted laws the information should not be provided.

This clause was amended to reflect this.

Clause 15
There are the procedural protections that would have vested rights in citizens and if information is to be requested by a foreign country and is to be supplied by the BIR it should be supplied in accordance with law as presently exists and if the request cannot cross the threshold of enacted laws the information should not be provided.

Additionally, this Clause was updated to ensure that our citizens’ information in the United States is protected with at least the minimum privacy protections required by the Data Protection Act.

This clause was amended to reflect this.

Clause 16

There are the procedural protections that would have vested rights in citizens and if information is to be requested by a foreign country and is to be supplied by the BIR it should be supplied in accordance with law as presently exists and if the request cannot cross the threshold of enacted laws the information should not be provided.

Financial institutions are given protection for acts they conduct under the FATCA legislation in good faith.

This clause was amended to reflect this.

Clause 21

The reach of the MOU found in Clause 21 can affect the manner in which the participants in the financial system operate and therefore before any such step is taken there needs to be consultation with all stakeholders in the system that are potentially affected by the entering into this MOU.

Additionally, a few minor typos were corrected and Clause 21A was added to address the substance of the rules/procedures to be created pursuant to Clause 21.

NEW Clause 21A

The MOU and any rules and procedures should be subject to affirmative resolution of Parliament to allow disclosure, debate, and parliamentary approval thereby ensuring there are safeguards to protect sensitive personal information, amongst other things.

Clause 25

The Clause as originally drafted gives the Minister blanket approval to make the law any future changes to the IGA without disclosure, debate, and approval of Parliament. Any such change must be subject to the affirmative resolution of Parliament.

Clause 26

Several minor typos were corrected.

Clause 28

Several minor typos were corrected. Further guidelines to be issued are made subject to affirmative resolution of Parliament.

Clause 29

Protection for Trinidad and Tobago financial institutions was added.

NEW Clause 31

Requires that all regulations made pursuant to the act are made subject to Parliamentary scrutiny. Any regulation may pertain to the handling of citizens’ sensitive financial information and this handling should be subject to public debate through Parliament.

NEW Clause 32

Ensures that person potentially affected by the Act have to power to access information via Freedom of Information Act request.

Image result for minister bhoe tewarie

DR BHOE TEWARIE

Image result for dr tim gopeesingh

DR TIM GOPEESINGH

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