The key contents of the article are probably well known to readers of this blog. The authors do analogize to the infamous "Umbrella Man" who surfaced in connection with the John F. Kennedy Assassination. The Wikipedia entry on the Umbrella Man is here. I do think that anecdote is useful in thinking about the situation addressed.
From the legal perspective, however, I do have a couple of quibbles.
- Readers should remember that, in a legal setting, the level of mens rea is the Cheek definition for willfulness -- the voluntary intentional violation of a known legal duty. Even where willfulness is not a specific statutory requirement, the crimes that could be marshaled against the enablers have similar levels of intent. See John A. Townsend, Tax Obstruction Crimes: Is Making the IRS's Job Harder Enough, 9 Hous. Bus. & Tax. L.J. 255, 277-314 (2009), here. Of course, those assisting the bank should be keenly aware of that standard and deploy it in assessing the conduct of the bank personnel.
- As for deliberate ignorance (which I usually call conscious avoidance), I have spoken often on that subject on this blog. The law is not settled, but I think when it is, the concept of willful ignorance will not be a substitute for the express intent to violate a known legal duty, but a device to permit the trier of fact to infer in the context of all the facts and find, beyond a reasonable doubt, that the defendant had the specific intent to violate a known legal duty. That may not sound important, but I think it is.
- I continue to be concerned about the ease with which the aiding and abetting concept is used. I have ranted on that subject before and won't do it again. Follow the links below to read more about it. See also John A. Townsend, Theories of Criminal Liability for Tax Evasion (5/15/12), here. As to the charge of tax evasion and the obstruction charges (tax obstruction under Section 7212(a) or defraud / Klein conspiracy under 18 USC 371), the bank employees can be directly guilty of the crime, so aiding and abetting does not add anything other than extra and meaningless jury instructions. I suppose that, since tax perjury is a status crime and bank employees do not satisfy the required status (the taxpayer signing the return), the aiding and abetting concept might be marshaled for them, but they probably would be directly guilty under 7206(1), aiding and assisting. Oh, well.
The key point the authors make is that, as in all of life, there is no substitute for hard work and experience in making the decisions that are so important to the Swiss banks assessing their exposure and participation in the program.