Of course, it is not at all clear just how much relief a foreign depositor would get by invoking such relief. There have been isolated reports of success, but I suspect that, in this ongoing saga, Switzerland will be less and less inclined to forego the treaty country requests simply because the foreign depositors seeks relief in the Swiss system. Perhaps more importantly, I wonder whether those U.S. depositors whose names are published will still qualify for the OVDP or Streamlined. Keep in mind that the issue is whether the Swiss will turn over pursuant to a treaty request, so, at least as to the U.S., the U.S. must have had some type of identifier information to make the request. Group requests -- or as I call them, John Doe Requests -- made with information from the Category 2 banks would not be specific information of identity, but might be sufficient for the IRS to claim that those depositors were already effectively under audit.
Further, as the Swissinfo article notes:
A change to the Swiss law last year allows the tax authorities to withhold from the account holder the fact that it is cooperating with a foreign jurisdiction. But this applies only under certain circumstances, such as when the requesting country feels the person under investigation may destroy evidence.Finally, U.S. depositors should keep in mind in considering invoking procedures to avoid the turn over that they are required to serve the papers also on the Attorney General. See 18 USC § 3506, here, titled Service of papers filed in opposition to official request by United States to foreign government for criminal evidence. There is no specific penalty in the statute for violating this obligation to serve the papers, but the failure to do so could be a key component in meeting the elements of the panoply of crimes that might be charged.