Friday, February 15, 2013

Swiss and US Sign IGA (2/15/13)

On February 14, the U.S. and Switzerland on February 14 signed an intergovernmental agreement (IGA) implementing the Foreign Account Tax Compliance Act.  The IGA is here.  The Swiss announcement is here.

According to a Tax Notes Today article (Kristen Parillo, Switzerland, U.S. Sign FATCA Agreement (TNT 2/15/13):
The Swiss IGA largely follows the Model II template  released by Treasury in November, although there are some deviations that seem to reflect the more sensitive nature of the Swiss-U.S. negotiations. For example, the opening of the Swiss IGA includes the recital: "Whereas, in the expectation of contributing to a solid basis for an enhanced cooperation in tax matters with the United States, Switzerland is supportive of the implementation of FATCA." 
* * * * [Jane Newton of DLA Piper's London Office said that] the Swiss IGA does not contain a commitment, contained in article 5 of Model II (and article 6 of Model I), to work with other countries to develop a common model for automatic information exchange.
The omission of that commitment reflects the Swiss government's cautious approach to entering into special tax cooperation agreements, Newton said. "The Swiss have been taking a risk-based approach to these agreements and are only signing bilateral agreements with countries that are economically important to Switzerland -- the U.S., the U.K., Austria, and Germany," she said, referring to the withholding tax agreements Switzerland signed with the United Kingdom, Austria, and Germany (although the German parliament did not approve the agreement). 
Granwell noted that there is a significant difference between the approach taken by the Swiss withholding agreements and the Swiss IGA: the former generally preserve Swiss bank secrecy, while the latter does not. Under the IGA approach, the residence country obtains information on its residents' Swiss bank accounts. Under the withholding agreement approach, the residence country obtains tax revenue through anonymous withholding on its residents' Swiss bank accounts, but generally doesn't receive information on those accounts.
The Swiss IGA contains an enabling clause, not included in the Model II template, stating that Swiss financial institutions that enter into an FFI agreement with the IRS or register with the IRS as deemed-compliant FFIs are authorized and therefore not liable to any penalty according to article 271 of the Swiss Criminal Code. That provision paves the legal and legislative way for Swiss financial institutions to be able to register with the IRS, said Newton.
The enabling provision also reflects "an acute sensitivity to Swiss bank secrecy and how the IGA explicitly provides that a Swiss financial institution that registers and becomes a reporting/compliant entity won't be liable for a penalty," said Granwell, adding that the enabling provision also ties in with the irrevocable consent account reporting provisions of article 3 of the IGA. 
Newton and Granwell noted that the Swiss IGA goes further than the Model II template by providing a deadline on when Swiss financial institutions must report to the IRS the aggregate number and aggregate value of all non-consenting U.S. accounts (no later than January 31 of the year following the year to which the information relates). The deadline for when Swiss financial institutions must report the number of nonconsenting nonparticipating financial institutions to which foreign reportable accounts were paid during the year, and the aggregate value of those payments, has been shortened: The deadline under Model II is March 15 of the year following the year to which the information relates, but the Swiss IGA gives a January 31 deadline.
Other articles:

Patrick Temple-West, Switzerland, U.S. sign pact on fighting tax evasion (Reuters 2/14/13), here.

Robert W. Wood, US and Switzerland Sign New FATCA Agreement (Forbes 2/14/13), here.


  1. Let me add to the 'additional articles' worthy of reading...

    From, is this story:

    US-Switzerland sign controversial Fatca agreement (update) .

    "Bern says in a statement issued after the signing, noting that the agreement must be submitted to parliament for approval. It is also subject to an optional referendum.

    Given the urgency of putting the agreement into operation, the government will speed up the usual consultation process, it says, giving only four weeks for interested parties to submit their comments."

    So this isn't over until the FATca Lady signs. Still a few more hurtles on the Swiss side. Of course on the U.S. side, this is a Competent Authority (CA) agreement, requiring no further Congressional "advise and consent' review, as Treasury does not consider it a Tax Treaty. Very convenient for them.

    Not sure this agreement meets the 'Will of Congress', but let's not give them a chance to weigh in, shall we?

    We do know that the Model 1 IGA (like with the UK) with the so called Article (2) (a) (b) reciprocal provisions as meager as the IRS bulletin 2012-20 which supports them, did not meet the Will of the House as demonstrated by the Posey bi-partisan legislation last session. It just did not come to a vote in the Senate.

    Will that be the last effort at trying to reign in the FATCAnatics? Time will tell.

    So the FATCA / DATCA / GATCA battle wages on.

    BTW, there was a pretty good review in The Economist Print edition of the evolution of the automatic tax data exchange efforts which is worth the read.

  2. On quick reading, this seems to be a reasonable agreement that gives the US most of the information it wants without unduly burdening banks over small potatoes.

    One thing that sticks out is that many who decided to neither enter OVDI nor to initiate quiet disclosure (but simply chose to wait and see, possibly waiting for the statute of limitations to run out) as well as those who still are not aware of FBAR reporting issues, will end up with their information not being disclosed, because they do not meet disclosure criteria (whether intentionally or unintentionally.) It goes without saying that even though the IGA may not require their account to be disclosed, all their reporting obligations remain.

    I find it unfair that those who did come forward in order to remedy past noncompliance (despite their chances of discovery being exceedingly small) face huge penalties, or the possibility of such penalties.

    It's interesting that in order for banks and other institutions to meet the criteria set forth in Annex II, and therefore not have to meet the reporting requirements of most Swiss banks, they are required to not discriminate against US persons who are resident of either Switzerland or the EU in offering them bank accounts. We'll see whether certain banks will again begin offering accounts to US persons resident in Switzerland.

    Another criterion in Annex II is that at least 98% of the value of their deposits must belong to residents of Switzerland or the EU. This may result in many depositors from Asia, Russia and Latin America to be told to switch banks.


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