One minute with Filippo Noseda, partner at Mishcon de Reya and a visiting professor at King’s College in London.
What’s keeping you busy at work?
My practice has changed beyond recognition over the last few years, and I think that this reflects a general sentiment among private client lawyers. The biggest game changer has been the increasing overlap between advisory work and regulatory work. Once upon a time, private client tax lawyers and compliance officers did not often come into contact, other than perhaps when opening bank accounts. However, with the introduction of FATCA, the CRS, enhanced KYC rules, beneficial ownership registers and advance disclosure schemes (DOTAS in the UK, DAC6 internationally), compliance work now pervades our professional life.
The increased flow of information also means a different kind of interaction with tax authorities. In the past, the main intersections were 31 January (tax returns) and 5 April (end of tax year), whereas nowadays the interaction takes place throughout the year.
Last, but not least, Brexit has shown the relative insularity of British institutions and a challenge to the perceived supremacy of English law and the English legal system. All of this has kept lawyers like me extremely busy.
You’re leading a landmark case on the interaction of FATCA and GDPR. What can you tell us about it?
I originally qualified in Zurich in 1995. At the time, my country of origin was stuck in the straight-jacket of banking secrecy. That madness came to an abrupt end with the sordid revelations of secretive accounts and diamonds smuggled in toothpaste that led to the enactment of FATCA.
But FATCA was introduced three years before Edward Snowden’s revelations raised important issues on the balance between privacy and transparency, data protection and compliance. It was also introduced at a time when governments felt that information harvested and processed electronically was safe. That was before daily reports of hacking and data breaches which have been filling newspapers over the past five or six years. These included shocking incidents involving tax authorities, such as the theft of the data of almost every adult in Bulgaria, the loss of the data of 6m taxpayers in the US, and an acknowledgment by the OECD that data theft has affected information exchanged under automatic exchange of information.
The pendulum has shifted from one extreme to the other, and in the process fundamental human rights, such as the right to data protection enshrined in the GDPR, have been trampled over.
Enter Jenny, a US-born British citizen living in the North of England, who nearly had a heart attack when her high street bank told her that she might be evading tax and would be reported to the IRS. Jenny was unaware that the US taxes its nationals on a worldwide basis. She rushed to file US tax returns only to be told that she did not owe any US tax because she earns less than the $104,000 ‘foreign earned income exclusion’ available for Americans living abroad.
Like me, Jenny was incensed by the risks of data loss and identity theft in circumstances like hers where there was no tax at stake. We therefore decided to file a data protection complaint with the UK’s Information Commissioner’s Office which is pending. Depending on the ICO’s reply, we might have to go to court in the UK and possibly Europe.
What do you know now that you wish you’d known at the start of your career?
I am glad that I originally qualified as a Swiss lawyer, because I was given a very broad knowledge of the law at university. On the other hand, as an English solicitor, I have been taught to solve problems pragmatically, and I wish that my university education had been more practical. Looking back, the first part of my career was focused on finding problems, whereas I now enjoy solving them.
There’s a joke about a continental European lawyer telling an English counterpart: ‘Thank you for finding the solution. But does it work in theory?’
You might not know this about me but...
Judging by a Google search, before hitting the headlines in connection with the CRS and FATCA, my claim to fame was as a result of the ice bucket challenge. There’s a picture of me half naked with a bucket of icy water poured over my bald head, which I don’t know whether I should leave or have removed under the ‘right to be forgotten’ legislation. Yet another intersection between a tax lawyer and the joys of data protection!
One minute with Filippo Noseda, partner at Mishcon de Reya and a visiting professor at King’s College in London.
What’s keeping you busy at work?
My practice has changed beyond recognition over the last few years, and I think that this reflects a general sentiment among private client lawyers. The biggest game changer has been the increasing overlap between advisory work and regulatory work. Once upon a time, private client tax lawyers and compliance officers did not often come into contact, other than perhaps when opening bank accounts. However, with the introduction of FATCA, the CRS, enhanced KYC rules, beneficial ownership registers and advance disclosure schemes (DOTAS in the UK, DAC6 internationally), compliance work now pervades our professional life.
The increased flow of information also means a different kind of interaction with tax authorities. In the past, the main intersections were 31 January (tax returns) and 5 April (end of tax year), whereas nowadays the interaction takes place throughout the year.
Last, but not least, Brexit has shown the relative insularity of British institutions and a challenge to the perceived supremacy of English law and the English legal system. All of this has kept lawyers like me extremely busy.
You’re leading a landmark case on the interaction of FATCA and GDPR. What can you tell us about it?
I originally qualified in Zurich in 1995. At the time, my country of origin was stuck in the straight-jacket of banking secrecy. That madness came to an abrupt end with the sordid revelations of secretive accounts and diamonds smuggled in toothpaste that led to the enactment of FATCA.
But FATCA was introduced three years before Edward Snowden’s revelations raised important issues on the balance between privacy and transparency, data protection and compliance. It was also introduced at a time when governments felt that information harvested and processed electronically was safe. That was before daily reports of hacking and data breaches which have been filling newspapers over the past five or six years. These included shocking incidents involving tax authorities, such as the theft of the data of almost every adult in Bulgaria, the loss of the data of 6m taxpayers in the US, and an acknowledgment by the OECD that data theft has affected information exchanged under automatic exchange of information.
The pendulum has shifted from one extreme to the other, and in the process fundamental human rights, such as the right to data protection enshrined in the GDPR, have been trampled over.
Enter Jenny, a US-born British citizen living in the North of England, who nearly had a heart attack when her high street bank told her that she might be evading tax and would be reported to the IRS. Jenny was unaware that the US taxes its nationals on a worldwide basis. She rushed to file US tax returns only to be told that she did not owe any US tax because she earns less than the $104,000 ‘foreign earned income exclusion’ available for Americans living abroad.
Like me, Jenny was incensed by the risks of data loss and identity theft in circumstances like hers where there was no tax at stake. We therefore decided to file a data protection complaint with the UK’s Information Commissioner’s Office which is pending. Depending on the ICO’s reply, we might have to go to court in the UK and possibly Europe.
What do you know now that you wish you’d known at the start of your career?
I am glad that I originally qualified as a Swiss lawyer, because I was given a very broad knowledge of the law at university. On the other hand, as an English solicitor, I have been taught to solve problems pragmatically, and I wish that my university education had been more practical. Looking back, the first part of my career was focused on finding problems, whereas I now enjoy solving them.
There’s a joke about a continental European lawyer telling an English counterpart: ‘Thank you for finding the solution. But does it work in theory?’
You might not know this about me but...
Judging by a Google search, before hitting the headlines in connection with the CRS and FATCA, my claim to fame was as a result of the ice bucket challenge. There’s a picture of me half naked with a bucket of icy water poured over my bald head, which I don’t know whether I should leave or have removed under the ‘right to be forgotten’ legislation. Yet another intersection between a tax lawyer and the joys of data protection!
