Sunday, December 22, 2013

Swiss Bank Hype and Over-Hype (12/22/13)

The Swiss hype -- I think, in some respects, overhype -- about the U.S. Swiss bank initiative continues unabated.  Perhaps it is the uncertainty that causes overhype -- perhaps even fear.  But, as I suggested before, setting aside the specific misconduct of specific bankers, the issue for the banks is whether there was enough critical mass developed that the misconduct infected the whole organization (at least in the sense required for business organization prosecution (as opposed to just prosecution to offending specific bankers)).

Let's take a look at one of today's articles.  Swiss banks sign up to reveal hidden accounts (Yahoo Finance 12/22/13), here.  Here are some of the key excerpts for this discussion.
Around 40 of Switzerland's some 300 banks have already said publicly they will take part in a US programme set up to allow Swiss financial institutions to avoid US prosecution in exchange for coming clean and possibly paying steep fines.
* * * *
Banks that opened undeclared accounts for US clients -- especially the ones that actively wooed such clients -- definitely should join the programme, experts say.
JAT Comment:  I think the program is targeted to those who actively wooed such clients.  And, by the same token, since all is relative, it is only the very bad banks that are likely to draw the DOJ fire if they don't join the program.

* * * *
Most so far are signing up for category two and thereby acknowledging they may well have had US clients with undeclared accounts.
JAT Comment:  I don't think banks are joining as Category 2 without some more belief than that they may well have had such U.S. clients with undeclared accounts.  Merely having U.S. clients with undeclared accounts is not the problem for those banks; it is those banks actions to become complicit in the U.S. clients' failure to report the accounts.  If the only problem were that U.S. clients did not comply with U.S. law, the banks would have no criminal exposure.
"More banks have said they will go for category two than would be expected," said Walter Boss, a tax lawyer with Poledna Boss Kurer AG in Zurich. 
Category three, reserved for banks that aim to prove their innocence, "won't be crowded, it looks like," he said.
JAT Comment:  This would indicate that the problem is wider-spread than I initially thought.
Especially surprising perhaps is that a large majority of the publicly backed cantonal banks, which are regionally based and have long insisted they never went after US clients, have opted for category two. 
All the banks rushing to the confession booth have not necessarily committed any misdeeds though, experts say. 
A number of banks insist they have only had a few US clients and have never done anything to encourage tax evasion, but have chosen to initially join category two for fear that a single tax-dodging American, even unbeknownst to them, could land them in legal qualms.
JAT Comment:  The last paragraph is over-hype.  The well-counseled would know that they don't have a problem with "a single tax-dodging American."
"I think the fears in Switzerland are too big when it comes to the United States," said Peter Viktor Kunz, a business law professor at Bern University.
"I really hope that common sense prevails in the end," he said.
 Switzerland's third-largest bank, Reiffeisen, and private bank Vontobel have for instance said they will opt for category three or four, reserved for local banks with no US clients at all, which should show some of the smaller banks with few US clients that the self-flagellating is unnecessary, Kunz said.
Banks in category two will face penalties equivalent to between 20 and 50 percent of the value of undeclared accounts, depending on when they were opened, not to mention towering legal and translation fees. 
"Many of the smaller banks simply will not be able to afford this," Hornung said, cautioning that a number of banks might go belly-up. 
He urged banks that had done nothing wrong to opt out of the programme altogether, insisting that Washington was not interested in hunting down the minnows in the pond.
JAT Comment:  I agree, except that the smaller banks need good counseling before joining category 3, unless their U.S. activities were outsized, not just relative to their ordinary operations but significant in terms of the activities of the other larger banks.  I would doubt that the U.S. would prosecute smaller banks unless they really did something outlandish.  But that is my speculation and, in all events,careful and nuanced review of all the facts is necessary.

At the end of the day, provided that these banks can get their U.S. clients to get into U.S. tax compliance and provide the necessary proof, these banks will get penalty reduction.  Given the time window of the problem for Swiss banks (after 8/1/08), not only did they know or should have known of the problem but the clients did as well.  These clients should join the IRS OVDP program to solve their problems.  And, if they do, they will thereby mitigate the Swiss banks' penalty, at least if they share proof of U.S. tax compliance with the banks.

Let me give a simple example.  Say, a U.S.client has $1,000,000 that was his high point over the 8-year period.  The high point year was 2011.  Coincidentally, assume that the $1,000,000 gets included in a 50% penalty base for the bank.  So, if the U.S. client joins OVDP 2012, he will pay $275,000 (assuming no opt out which would be indicated by this timing).  But, provided that he proves his compliance to the bank, the bank can get a penalty reduction of $500,000.  I think the bank would be well advised to consider sharing its "savings" with the U.S. client (perhaps in return for the U.S. client's proof of U.S. compliance), maybe even fully paying the in lieu of penalty and the costs such as attorneys fees of joining the program.  Remember that these banks were more than happy to share in the U.S. tax savings from the raid on the fisc in which they conspired.  They would not have done anything for these clients unless they shared the tax "savings" with the banks.  So, more sharing may be in order - this time with the banks sharing their penalty savings with the U.S. clients who prove their U.S. tax compliance.


  1. More good points, Jack.

    What is also interesting is the effect filing as a category 2 bank will have on involved employees and management. The banks are throwing their own under the bus.

    The bank must 'give up' its involved employees under category 2. They might thus find traveling outside of Switzerland a bit 'uncomfortable' for the rest of their lives.

    And how can a publicly owned cantonal bank not fire its employees and management who admittedly committed crimes that cost the bank (and thus their own taxpayers) millions in fines?

    To be a category 2 bank, the bank and its employees are dirty. Like you said, it's not about a US person doing wrong, it's about serious and pervasive misconduct by the bank's employees and management.

  2. Query: What is the effect on tax compliant customers of category 2 banks?

    The category 2 customer data production does not exclude tax compliant customers. Nor does it exclude voluntary disclosure participants.

    The next obvious step for the US will be to make treaty requests based on the supplied data.

    Maybe the treaty request will cut out tax compliant customers? Or, maybe even tax compliant customers will face an audit to prove their innocence?

    And here is another question. The bank's penalty is reduced by this language:

    The determination of the maximum dollar value of the aggregated U.S. Related Accounts may be reduced by the dollar value of each account as to which the Swiss Bank demonstrates, to the satisfaction of the Tax Division, was not an undeclared account, was disclosed by the Swiss Bank to the U.S. Internal Revenue Service, or was disclosed to the U.S. Internal Revenue Service through an announced Offshore Voluntary Disclosure Program or Initiative following notification by the Swiss Bank of such a program or initiative and prior to the execution of the NPA.

    What does "not an undeclared account" mean? One that previously went through a voluntary disclosure? One for which no taxes are due? A retirement account? One with a W9 on file? What falls into this?

    How does a bank prove tax compliance by its customer without a privacy waiver by the customer?

    Why is there an exclusion for disclosed customers? Is this to encourage the banks to get voluntary disclosures before a treaty request? Or is it intended to encourage the banks to violate their privacy laws?

    Maybe the customers will want nothing further to do with the banks and would prefer to see the money go to the US government than stay with their criminal former bankers? Unless, as suggested, the banks start paying off their customers.

  3. The press wrote today that St.Galler Kantonalbank will go into category 2 because it seeks a quick and definitive ruling. Such would give the clients, business partners and employees security. The bank says that it does not know if its US clients did their US taxes properly:;art122380,3641881

    Aargauische Kantonalbank will also enter category 2 because it also does not know if its US clients did their US taxes. Less than 1.5% of its clients are outside of the EU, it has less than 20 American clients and it closed the accounts of 300 individuals who lived in America:

    How does a bank know if a client did their taxes, especially in the case of former clients who live in America? Do American banks keep track of how their clients do their taxes? My US bank never asked me for proof that I filed Swiss taxes.

  4. Swiss Techie,

    As usual, you make some good points. However, I suggest that many readers of your comments will be turned off by your hyperbole and beyond. For example, you call the U.S. action "racist" and say that the U.S. should "focus on national origin discrimination." Those issues might be good issues, but I think most would say that they have nothing to do with proper redress of the Swiss bank and enabler conduct.

    Of course, I think your broader point is that the U.S. is just using its force to do its will and extract money from Switzerland.

    I disagree with that point, but I don't know what else I could add to that discussion in this comment.

    Thanks for your interest in the blog.

    Jack Townsend

  5. I think a claim made by the Swiss banks -- certainly some of them -- is that Swiss banks have no way of knowing whether U.S. clients were tax compliant (either originally or by way of voluntary disclosure or other remedial action). Hence, the treaty request may have to include all U.S. clients with certain characteristics that will pick up most of the more egregious noncompliant accounts.

    Some tax compliant customers might be audited, but again, I think the IRS will focus its efforts on indicia of noncompliance.

    As to the meaning of undeclared account, I think you have to read it in context. I think the context suggests either decleared on the original return or on an amended return outside OVDP. I say this because the balance of the sentence treats separately disclosures by the banks to the U.S. and disclosures in the OVDP.

    As to how banks prove U.S. tax compliance, the customer will have to tell. I have clients who have already received requests for such disclosures. Whether and under what terms the U.S. customers will disclose is a different question. What I suspect it will mean is that the Swiss banks will have to give up some of the savings from the penalty reduction.

    Thanks for your comments.

    Jack Townsend

  6. I think you must consider the context. In my opinion, the U.S. is not set on prosecuting as many Swiss bankers as it can. The more egregious actors may be at risk, but I would be surprised if the number of Swiss bankers ultimately indicated exceeds 100 and probably even 50. I know even those numbers are large, but the U.S. prosecution potential is limited by resources and by sound judgement. I think the U.S. DOJ can make its point with some representative prosecutions.

    One factor in all this is that bringing a criminal tax case is an enormous cost to the U.S. Historically, the IRS and even DOJ Tax have known about many more tax cheats than they have the resources to criminally investigate and prosecute. So, the IRS and DOJ Tax focus on the egregious conduct and the prosecutions that, through representation, can send a message that will, it is hoped, encourage others either not to misbehave or quit misbehaving.

    Many seem to think that the goal of the U.S. in the initiatives for the U.S. taxpayers (the OVDI/OVDP initiatives) and the Swiss Bank program is to shake money from the tree for past sins. A major goal,however, is get taxpayers more fully invested in the system we have for the future. These taxpayers -- at least most of them -- will be compliant in the future. And, other U.S. taxpayers will be less tempted to use offshore banks for tax evasion because of this steady drumbeat of publicity.

    I dare say that this intangible fiscal benefit of future compliance will eclipse the financial benefit from these programs.

    Jack Townsend

  7. A treaty request that did not make some effort to identify noncompliant customers, might not survive a challenge in the Swiss courts. Even in the UBS case, the bank did not produce 100% of its clients.

    But I agree with you that the definition of declared clients would seemingly not include voluntary disclosure participants, because it would render the last portion of the sentence meaningless.
    On the other hand, if a customer consents to the disclosure of his identity, then that customer would seemingly not be subject to the bank's penalty calculation. Then again, the deal speaks in the past tense with regard to customers the bank identifies to the IRS, so maybe a future consent doesn't count? It would seem to be inconsistent to exclude someone from the penalty reduction who was a past voluntary disclosure participant, but then allow that person to be a reduction in the bank's penalty if the person merely consents to the bank producing his/her name.

  8. How I am supposed to view the generalizations as not being bigoted/racist? It is fair to argue that UBS upset some Americans since it didn't pressure US banks to comply with Swiss laws, but anything beyond that is heading into the extremes.

    You say that Americans must only care about "Swiss bank and enabler conduct". This means that some Americans are so heavily obsessed with non-American matters that they neglect and ignore Americans and American issues, causing Americans to be harmed with discrimination caused by US policy.

    Anyone who wants to think that national origin discrimination is not a US federal crime is welcome to come to Switzerland to explain to Americans living here why they figure that it is honorable when Americans get kicked out of their banks simply because of America's treasured national origin discrimination federal crimes.

    Jack, if you want for your interests here to be more sincere, then you must make greater notice of the damage and harm caused to the innocent. I realize that America is excited that it found a tax cheat and extracted some free money from a foreign government. Yet, in the end, justice always wins and this won't be in America's favor.

  9. Many banks in category 2 have almost no or no known US clients. The Americans already got kicked out of the bank regardless if they were innocent or guilty, thanks to America's treasured national origin discrimination crimes. So, the question should rather be, what is the effect on tax compliant former customers of category 2 banks?

    To that, I might add, what happens if the tax compliant former client living in the US does not respond to the banks inquiry for evidence of tax compliance? Will the US seek to wrong punished the innocent bank since a compliant former customer didn't respond?

  10. You say that "it's about serious and pervasive misconduct by the bank's employees and management"

    According to which law? US law which applies to US jurisdiction? Or, Swiss law which must be enforced in America to prevent pervasive misconduct?

  11. America is having enough trouble trying to get individuals living in America to be complaint with US laws. As such, why does America need to exports its problems to make them more complex and problematic in an international setting?

    If Americans living abroad are supposed to be compliant with US laws which conflict with local laws, then why is US policy outside of US jurisdiction not compliant with US laws on various issues such as national origin discrimination? Basically what you are saying is that the US government figures that it may violate its laws while its citizens may be violated by such violations.

  12. I am not sure you are using the terms bigoted and racist in the way Americans commonly understand and use those terms. That is why your message is tuned out, at least by Americans reading those comments.

    And, I don't think what the IRS is doing has anything to do with national origin. DOJ and the IRS will proceed against other banks with egregious conduct, regardless of national origin.

    Switzerland got hit first because of a perfect storm that pointed to Switzerland. There will be more.

    Jack Townsend

  13. If Swiss banks join Category 2 with "almost no or no known US clients" -- then they are sadly miscounseled. Of course, we then get to what you mean about "known US clients." We have a concept called willful ignorance, willful blindness and various other formulations that may apply. So, if the Swiss banks are saying that they joining with "almost no or no known US clients," they must have concluded with counsel that their actions were sufficient to constitute willful ignorance, etc. Otherwise, they could not conclude that they probably violated U.S. law.

    These banks know what they are doing. And like everyone who gets caught with their hands in the cookie jar, they put the best spin on misbehavior. They want you to believe that they did not misbehave, but yet they willing join a program intended for those who know they did misbehave.

    And, if indeed, they misbehaved with only a few US clients, the penalties will be light.

    I don't buy their spin.

    Jack Townsend

  14. Well, their conduct -- if intentional or willfully ignorant -- was intended to have its consequences inside the U.S. If everything they did have their consequences only in Switzerland, there might be a complaint about extra-territorial enforcement. But the key intended consequence -- U.S. tax noncompliance as to which the Swiss banks and bankers took their share -- occurred here. That is why the banks and the bankers can be charged with conspiracy as well as, based on the same conduct, directly for tax evasion. (I have written on the latter concept before.)


  15. As always you make some interesting points. However, I think one needs to take into account further aspects. First, Swiss Banks are fearing that an indictment in itsself will be lethal because they think there is a possibility that they'll be SWIFT embargoed, which means they would be excluded from dollar clearing (like Iranian banks f.e.). This means that a bank would lose its ability to perform dollar transactions, which is a death sentence for any bank in todays economy.

    Second, this tax controversy has been going on for the last five years (since the Senate Hearings on Tax Havens in July 2008). Investors, management and last but not least the Swiss regulator are desperate to put this whole affair to an end. And even if a bank would take its chances of being prosecuted, this will very likely end in a settlement, since litigation in the U.S. is astronomically expensice and no one knows if this would be the cheaper solution (Correct me if i'm wrong on the last one).

  16. Mr. Walker,

    You make some great points. Thank you so much.

    I do think, however, that the U.S.prosecution is sensitive to avoiding death sentences for organizations. We learned a lesson from the Arthur Andersen prosecutions and have been refining that lesson through a series of prosecutions and mini-prosecutions (DPAs, NPAs, etc.) since Arthur Anderson.

    I speak only as an observer of the process. But I don't think that the U.S. or its agencies DOJ and IRS are out to sink any particular Swiss organization or Swiss banking. If those in authority to make decisions for the banks believe that, they are not (in my opinion) being well advised. I hope those banks have gotten qualified US counsel -- the ones with the best judgment and not necessarily the highest hourly rates.

    I do think that the banks need closure because of the uncertainty. I do think t hat the DOJ program offers a lot more certainty now. I do hope that those banks will get good counsel as to the real risks (and not in terrorem risks) and conform their current strategies accordingly.

    As I have said with OVDI/OVDP participants for some time now. Do not from fear and uncertainty assume the worst. While I would not lull any Swiss bank playing in this arena into thinking that things are good, I will say that,for most of them, it is not Armageddon.


    Jack Townsend

  17. Jack, so why would a US taxpayer who had reported his bank account to the IRS & FBAR be interested in filling out the request confirming US IRS disclosure by the bank. The disclosure requests confirmation of all years 1040 submissions and includes a separate form expressly authorizing the bank to disclose all "information related to the Account" to the US authorities without penalty to the bank, its employees, officers etc thus releasing the bank from compliance with Swiss Banking laws. Will such reporting not encourage IRS auditing? If the former bank customer refusing to sign will the bank not identify the customer to the authorities anyway (thus triggering for sure a high audit risk?

  18. 1. The banks will turn over the information within the scope of the requests whether or not the U.S. depositor waives the disclosure and whether or not the U.S. depositor was U.S. tax compliant (whether on the original filings or later by OVDI/OVDP).

    2. I would not turn over tax returns to the banks. The banks need proof of U.S. tax compliance. That proof may be provided in several ways. I don't think providing complete U.S. tax returns is appropriate. Perhaps a redacted U.S. tax returns showing only the critical reporting information already known to the banks, along with some type of certification or affidavit.

    3. I have no control over whether the IRS will check the U.S. tax compliance documents provided by the banks which will, in turn, be provided to DOJ and/or the IRS. I suspect that the IRS will not examine all of the taxpayers who provide proof of tax compliance to the banks; indeed, I suspect they will not examine many of them. Keep in mind that a U.S. taxpayer would be incredibly stupid to provide false compliance documents to the bank which, given the panoply of U.S. criminal provisions that might apply, will create new jeopardy for the U.S. taxpayer.

    4. Now, as to bank customers not supplying the bank the proof of compliance the bank needs to get a reduction of its penalty, that might cause the IRS to audit. But if it audits, the taxpayer should be able to prove compliance (even though he or she had not submitted the proof to the bank). And, of course, if compliance was through OVDI/OVDP, the IRS can quickly confirm the compliance in an audit of the U.S. taxpayer and not devote any more resources to that audit. If it is an audit, it will be audit light.

    5. Taxpayers should work with the banks to see if they will bear some of the taxpayers' program costs in return for supplying the documents that will reduce the banks penalty.

    Jack Townsend

  19. The "sad counselor" is the US government. It is the creator and enforcer of flawed policy which wrongly harms the innocent. Innocent banks are simplying doing what flawed dictation requires them to do. The main question here is how much more criminal the US government will choose to become?

    Ths US government is pressuring the Swiss government, FINMA and the auditors to force innocent banks into category 2. As such, one can't blame Swiss banks for the US government faults. The US government is the one who is misbehaving with its hands in the cookie jar. No evidence exists to show that any bank in category 2 did anything wrong.

  20. So, will the US extradite any American who violates Swiss law to be complaint with extra-territorial enforcement? I don't recall the US ever extraditing Bush to be charged for crimes of torture.

  21. I doubt that some Americans really understand the problems of racism. Some seem to think that the murder of a Semite is justified when one rejects the nation of Palestine in favor of illegal settlement expansions. Thus, others seem to think that it is not racist to generalize against another group of people in a heavily bigoted and hostile manner. So, some walk around accusing all Swiss of being "Nazi bankers" like how the Nazis made similar claims about Jews. Then, there are others who argue that all banks are guilty even though no evidence exists to prove such. Overall, humans are generally the same while the racists attempt to make it seems as if such is not so. Yet, it is the hatred which remains to be the problem.

    Identifying a group of people in another nation has everything to do with national origin discrimination. It's like pinning a yellow star on Jews so that they will be identified. Nazi Germany would be utterly thrilled if it could be in America's shoes today. It might not pick on the Americans, but the type of problem would be the same.

    Switzerland got hit first because too many Americans take Hollywood too seriously.

  22. I'm curious whether the tables could possibly ever be turned? For example, if one or more US banks were found to have actively recruited clients from other countries and encouraged tax evasion vis-à-vis these clients' home countries, could they be prosecuted similarly to how US is pursuing Swiss banks?

  23. Citibank wasn't charged a dime when it got caught helping Argentinians launder money.

  24. How does a bank know if a client is compliant or not when the IRS doesn't have the client details? Banks have no way of knowing if a client is compliant with US taxation.

  25. The banks are asking the U.S. depositors for proof of their tax compliance (either on the original filings or by joining the OVDI/OVDP). The banks do have to submit some proof which, I presume, the DOJ can then verify with the IRS consistent with the requirements of the privacy requirements in 26 USC 6103.

    Now, the question is whether the U.S. depositors will provide proof of their compliance to the Swiss banks (which they need to obtain a penalty reduction).

    I guess theoretically, if the critical mass of U.S. depositors were U.S. tax compliant on their original returns and the bank can prove that, the bank should not be joining as Category 2 participants.

    Jack Townsend

  26. What is proof of tax compliance? Is the IRS sending out certifications of tax compliance that can be shown to banks?

    Banks often have no way of knowing if their clients are Americans or not and if these Americans filed US tax returns. As such, the US is wrongly pushing innocent banks into category 2.

    Most Swiss generally figure that the US is reasonable to work with and that business as usual will be quickly resumed. As such, I suspect that US penalities against innocent banks will generate one heck of a lot of anti-American hatred which will likely harm trade with the US for decades into the future.

  27. If a US tax-compliant client does not disclose their identity, does this mean that the bank will be wrongly penalized for being innocent? What can the US do to ensure that it doesn't profit from crimes forced against the innocent?

  28. Tell me one benefit to the US taxpayer for giving its former banker the information requested to reduce the bank's penalty?

  29. Take a look at this section from the November 5, 2013 memorandum from the DOJ clarifying the terms of the bank deal. It seems to greatly limit the penalty reductions available to a bank:

    Penalty calculation – permitted reductions. The Program allows for the reduction of penalties with respect to three categories of U.S. related accounts. The first category – accounts that are not undeclared – is intended to address issues concerning lines of business that by their nature did not facilitate the evasion of U.S. taxes and reporting requirements. For example, a corporate account that was declared but had U.S. signatories who did not file FBARs is included in the definition of U.S. related accounts under the Program, but may be excluded for the penalty calculation. The second category – accounts that were disclosed by the bank to the Internal Revenue Service – refers only to accounts that were timely disclosed, not accounts that are disclosed under FATCA, as part of the Program, pursuant to treaty requests, as a result of other law enforcement efforts, or similar forms of later disclosure. The third category – accounts as to which the bank notified its account holders of an announced offshore voluntary disclosure program and can establish that its account holder made a voluntary disclosure under that program – includes only those accounts that were reported subsequent to notification by the bank. All forms of voluntary disclosure acceptable to the IRS will meet the voluntary disclosure standard of the Program, including the OVDI/OVDP procedures, the Streamlined Filing Compliance Program, and FBAR compliance under FAQs 9 and 17 of the respective IRS programs. The burden to show the application of penalty reductions rests with the bank. (Program II.H.)

  30. So, basically, the US is saying that if a bank bribes the US with enough money, that the US then might not ask for more? Unless the IRS provides banks access to their client data held by the IRS, banks will have no way of knowing who is compliant or not. This means that the program is based on a bribe guess, where the bank as to attempt to figure out how much the US wishes to be bribed with. Somehow, I doubt that the US greed for money can ever be satisfied.

  31. DOJ said " includes only those accounts that were reported subsequent to notification by the bank. "
    Thios would mean that if an account holder joined OVDP on his own after 2009 but prior to being prodded to do so by the bank then the bank would still pay a fine.

  32. Jack just as you have been perhaps the most vocal in saying that OVDP isn't for everyone and QD/FC may be a viable alternative for many, you seem to be the lone voice telling banks that they sahould not all go into Category 2. However just as many lawyers have scared people into OVDP, they may be scaring banks into Category 2.

  33. Many customers may have moved or died and the bank may not be able to contact former customers.

  34. yes you are correct about $C and it seems that many people have forgotten that already

  35. Jack you mention here that some of your clients did already provide proof of US compliance to their Swiss bank. You speak of a redacted US tax return and several other ways. Could you please elaborate on these "other ways" .

  36. ..... CH was the top investor in the US in 2010......
    you will find already many finacial planers and CPAs - one of them my friend Phil Hodgen advocating to avoid investing in the US and not just for duals and green cardholders .


Please make sure that your comment is relevant to the blog entry. For those regular commenters on the blog who otherwise do not want to identify by name, readers would find it helpful if you would choose a unique anonymous indentifier other than just Anonymous. This will help readers identify other comments from a trusted source, so to speak.