While using e-banking, information appeared in the “messages” tab that I should file a FATCA tax residence declaration in person or by e-mail. Unless I’m mistaken, FATCA applies to American taxpayers. But I’ve never performed any financial operations with United States entities, and haven’t even been there. Could the information from the bank have been a mistake?

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Important

Persons obliged to file a FATCA tax residence declaration who fail to do so by 30 November 2016 could have their bank or brokerage account blocked.

Note

The declaration is filed under pain of criminal liability for making false statements. This emphasises the importance of the whole situation, because the legislator doesn’t often decide to introduce a regulation on the possibility that an office or other institution might receive a declaration carrying such liability.

EXPERT’S OPINION

Marta Ignasiak, tax consultant at FKA Furtek Komosa Aleksandrowicz:

A request by a bank or other financial institution to file appropriate declarations carrying a threat of criminal liability for submitting false statements is in accordance with applicable law. The obligation to carry out procedures verifying clients and the need to obtain appropriate declarations from them was imposed on banks in Article 4 par. 2 of the Act on Performing the Agreement between the Government of the Republic of Poland and the Government of the United States of America in the Matter of Improving the Fulfilment of International Tax Obligations and Implementing FATCA Legislation of 9 October 2015. Under that act of parliament, bank clients should complete the forms provided for in the FATCA agreement. This obligation applies to clients who opened an account after 1 July 2014, i.e. new and present clients, including those who decided to close their bank account in the course of the year before the agreement came into force. To a limited extent it also applies to clients who opened accounts before 1 July 2014, if they qualify as high-value accounts.

In principle, institutions should discharge their obligation to verify old accounts by the end of November 2016. Under Article 19 par. 6 of the act, as of 1 December financial institutions should block financial accounts of those people who have not filed the required declaration. The blockade will involve making it temporarily impossible to use and manage assets on the account (above all, money, securities and financial instruments). In principle, the possibility cannot totally be ruled out that if a considerable number of accounts are blocked, at the end of the year the banks’ approach to domestic residents might ease. Nevertheless, the provisions of that act have a particular character and result from the international obligations accepted by Poland, and their performance has been secured by various sanctions on the part of financial institutions. At the same time, it would be difficult to accuse those regulations of being inconsistent with the Constitution, e.g. with regard to ownership protection or the right to privacy. One must therefore assume that the required declarations must be filed if one wishes to use a bank account without any problems.

The legal basis

Article 4 par. 2-4, 19 and 21 of the Act on Performing the Agreement between the Government of the Republic of Poland and the Government of the United States of America in the Matter of Improving the Fulfilment of International Tax Obligations and Implementing FATCA Legislation of 9 October 2015 (Journal of Laws of 2015, item 1712).

Edited by: Piotr Pieńkosz (DGP).