As reported yesterday by David Voreacos, Giles Broom, and Jeffrey Vogeli, 73 of the over 100 Swiss banks that enrolled in the Justice Department’s amnesty program for Swiss banks have written an 11-page letter requesting changes to the Justice Department’s proposed agreement that would serve to resolve any criminal liability relating to banking activity that facilitated offshore tax evasion. According to this report, the Justice Department is including terms in the agreement that were not included in the original program when it was announced in August 2013, with three new significant demands. First, the Justice Department is requiring all participating Swiss banks to “‘cooperate fully’ with ‘any other domestic or foreign law enforcement agency’ in any investigation.” Second, the Justice Department is requiring each participating Swiss bank to disclose information about any parent companies. Finally, the Justice Department is also requiring the Swiss banks to “share material with governments other than the U.S.” See Swiss Banks Ask U.S. to Amend Proposed Tax Amnesty Deals (Bloomberg Oct. 23, 2014); read the full article here.
The Swiss banks appear to be correct that these terms were not included in the program as announced in August 2013 and, further, go well beyond what was anticipated. The demand to cooperate “fully” in virtually any investigation conducted across the globe is extraordinarily broad, and there is likely no legal basis for the U.S. to demand that Swiss banks cooperate or provide information to any other foreign government.
The Justice Department is likely testing the limits of its carrot-and-stick approach – the formula for this program. Swiss banks that do not participate in the program are at risk of becoming the subject of a U.S. criminal investigation, which has already resulted in the closure of Switzerland’s oldest bank, Wegelin & Co., and the payment of a $2.6 billion fine by Credit Suisse Group AG, all within the last two years. While the penalties to be imposed by participating in the amnesty program are high, the risk of a result like that in Wegelin or Credit Suisse surely impacted the banks’ decisions to enroll in the program in the first place. Any bank choosing to opt out of the amnesty program at this point would risk a criminal investigation. Under these circumstances, it appears that the Swiss banks participating in the program have little bargaining power and are essentially at the mercy of the U.S. government.
Opening statements were heard on Tuesday and the first government witness testified yesterday in the trial of ex-UBS AG banking executive Raoul Weil. Prosecutors have sought to show him as the driving force behind the bank’s tax fraud scheme, and defense counsel has claimed that subordinates were at fault and he had no knowledge of the wrongdoing.
According to reporting from Law360, prosecutors explained to the jury in their opening statements that Mr. Weil was the driving force behind UBS’s tax evasion scheme, had many chances to close the cross-border business division but didn’t because it was profitable, and caused UBS bankers who came to the U.S. to meet with clients to engage in precautions “including storing client statements on a second hard drive that could be deleted instantly or meeting clients away from UBS offices – to avoid detection by federal authorities.” Defense counsel minimized Mr. Weil’s role and knowledge, blaming the tax evasion schemes on “subordinates who never told Weil about it and are now cooperating with the government to avoid prison time.” Carolina Bolado, Ex-UBS Exec Says He Didn’t Know About Tax Evasion Scheme (Law360, 10/14/2014, here).
Government witness Hansruedi Schmacher, who is also under indictment, testified yesterday of the details of how UBS managed its secret banking business for U.S. customers, according to a number of media reports. Meetings with customers were held in hotels, which location changed each trip; bankers carried no documents or business cards with the UBS logo or name; hard drives were encrypted; customers were identified on statements by code name, if statements were made available at all, and bankers utilized their own memory techniques to recall the code name used for each customer; customers were telephoned using U.S.-based phone rather than using a Swiss phone; and codes were used for accounts that were secret (“black” or “simple”) as opposed to ones that were declared to the IRS (“white” or “complex”). Nathan Hale, Ex-UBS Exec Opens Up About Swiss Tax Shelters in Weil Case (Law360, 10/15/2014, here).
Two other key Swiss witnesses are expected. Martin Leichti, the former head of the cross-border banking at UBS, who may be able to establish Mr. Weil’s knowledge of the business division and tax evasion schemes. The other is an unnamed former top executive at Neue Zürcher Bank who reportedly has recently turned himself over to the Justice Department in order to testify at Mr. Weil’s trial. Ex-banker heads to Florida to testify in Weil case (swissinfo.ch 10/08/2014, here).
The court is permitting three of Mr. Weil’s defense witnesses to testify through video link from London, because the witnesses will not travel to the U.S. to testify in person for the risk of being arrested. These witnesses have not yet been publicly named. Matthew Allen, Ex-UBS executive Weil finally faces US court (swissinfo.ch 10/13/2014, here).
Mr. Weil was indicated in 2008 for hiding the tax evasion schemes at UBS for more than 20,000 U.S. citizens and over $20 billion in assets. He had been a fugitive and was arrested in 2013 in Italy and extradited to the U.S. Mr. Weil pleaded not guilty earlier this year and, if found guilty, faces up to five years’ in prison.
On October 9, 2014, the Internal Revenue Service published additional guidance clarifying the requirements for participation in the Streamlined Filing Compliance Procedures. (See prior coverage of the new procedures announced in June 2014 here.) Here are links to the new guidance published on the IRS website:
- Updated general description of Streamlined Filing Compliance Procedures here;
- Updated instructions for taxpayers residing in the United States here;
- Frequently asked questions for domestic taxpayers here;
- Updated instructions for taxpayers residing outside the United States here;
- Frequently asked questions for taxpayers residing outside the United States here.
The IRS also released frequently asked questions for the Delinquent International Information Return Submission Procedures (available here). In a notable change, the IRS now states that these procedures are available to taxpayers even if they have unreported income:
The Delinquent International Information Return Submission Procedures clarify how taxpayers may file delinquent international information returns in cases where there was reasonable cause for the delinquency. Taxpayers who have unreported income or unpaid tax are not precluded from filing delinquent international information returns. Unlike the procedures described in OVDP FAQ 18, penalties may be imposed under the Delinquent International Information Return Submission Procedures if the Service does not accept the explanation of reasonable cause. The longstanding authorities regarding what constitutes reasonable cause continue to apply, and existing procedures concerning establishing reasonable cause, including requirements to provide a statement of facts made under the penalties of perjury, continue to apply. See, for example, Treas. Reg. § 1.6038-2(k)(3), Treas. Reg. § 1.6038A-4(b), and Treas. Reg. § 301.6679-1(a)(3).
We will analyze this guidance and provide further analysis in future posts.
This week brings a wealth of news in the FATCA arena, which we summarize in today’s post.
First, former acting IRS Commissioner Steven Miller speaks out against FATCA and suggests that the benefits of the new information reporting regime imposed by FATCA may not outweigh its costs. An article published by TaxAnalysts on October 7 quotes Miller as follows:
“I can’t even say with conviction that I’m sure, looking strictly on a cost-benefit basis, that FATCA’s . . . benefits are going to outweigh the cost,” Miller told a lunch crowd at the Securities Industry and Financial Markets Association FATCA Policy Symposium in Washington. “It’s not clear to me that when you look solely at the burden placed on financial institutions and others, versus the amount of revenue that may come into the treasury, that this is going to be a revenue-positive event for the United States.”
Miller, former deputy commissioner of services and enforcement and a 25-year veteran of the IRS, acknowledged both problems and progress in the implementation of FATCA and said that he believes “offshore evasion is an area in which noncompliance will never be completely eradicated.”
“While I have high hopes that the implementation of FATCA will be successful and of great assistance in this regard, I fear that it’s not going to be a panacea,” Miller said. “I also believe that we have yet to see the full breadth of creativity in terms of the types of assets that will be used into the future to store wealth overseas.”
Second, joining Miller in criticizing FATCA is National Taxpayer Advocate Nina Olson, who also spoke at the Securities Industry and Financial Markets Association FATCA Policy Symposium. According to an article published by TaxAnalysts on October 8, Olson made the following points in her remarks:
“This is a piece of legislation that is so big and so far-reaching, and [has] so many different moving pieces, and is rolling out in an incremental fashion . . . that you really won’t be able to know what its consequences are, intended or otherwise,’ Olson said. “I don’t think we’ll know that for years. And by that point we’ll actually be a little too late to go, “Oops, my bad, we shouldn’t have done this,’ and then try to unwind it.”
. . .
The raw numbers so far tell a confusing tale, Olson said. In 2011, 170,000 taxpayers filed Form 8938, “Statement of Specified Foreign Financial Assets”; 187,000 filed Form 8938 in 2012, she said. Forty-one percent of 2011 filers also filed a foreign bank account report, she added. However, in 2012 only 21 percent of Form 8938 filers had a foreign address, Olson noted.
“I really don’t know what people’s assumptions were when they enacted this requirement,” Olson said. “Did we expect to get 7 million? Did we expect to get 10 million? Did we expect to get 500,000? Is this a good result? Is this a bad result?” Just one-half of 1 percent of Form 8938 filers had a balance due account after getting notices, compared with 4 percent for the general taxpayer population, she noted.
Olson further noted in her remarks that a new cottage industry has sprouted as a result of FATCA: after foreign banks expressed reluctance to open accounts for some U.S. taxpayers overseas, some businesses began offering insurance to protect against incomplete FATCA disclosures. “So here we now have created a whole new industry for a risk we have manufactured ourselves,” Olson said.
Finally, Switzerland announced on October 8 that it would move toward automatic exchange of bank account information with other countries, including the EU and the United States. (See articles here and here.) If adopted, the earliest date for automatic exchange of data would be 2018 and the new reporting regime would require Switzerland to notify an account holder’s country of origin if a Swiss bank account is opened. Switzerland also announced that it would seek to negotiate a Model 1 Intergovernmental Agreement (IGA) with the United States to implement FATCA, to replace the Swiss-U.S. Model 2 IGA that was reached in February 2013. In a press release, the Swiss Federal Council made the following statements regarding its decision to implement greater transparency in its tax dealings:
The cornerstones of the mandates definitively adopted by the Federal Council today are as follows:
– The introduction of the automatic exchange of information is to be negotiated with the EU.
– Regarding implementation of the Foreign Account Tax Compliance Act (FATCA), a Model 1 FATCA agreement should be with negotiated with the United States. With the new agreement, data would be exchanged automatically between the competent authorities on a reciprocal basis.
– Negotiations on the automatic exchange of information will be initiated with further selected countries. In an initial phase, consideration will be given to countries with which there are close economic and political ties and which, if appropriate, provide their taxpayers with sufficient scope for regularisation.
– The introduction of the automatic exchange of information with foreign countries will be conducted by means of agreements with partner countries. Moreover, implementing legislation will be required in national law. This is currently being prepared by the Federal Department of Finance and will be submitted to parliament together with the negotiated agreements. The existing legislative framework excludes the automatic exchange of information.
Switzerland welcomes the new international standard, to which it contributed actively. It allows for a level playing field in the competition between financial centres, as these regulations apply to all, and is an important instrument in international efforts to combat tax evasion. Domestic bank client confidentiality will not be affected by the implementation of the new global standard.
It is important for the Federal Council that the requirements which it adopted in June 2013 are contained in the new standard. There is to be only one global standard, the exchanged information should be used solely for the agreed purpose (principle of speciality), the information should be reciprocal, i.e. should flow in both directions, data protection must be ensured and the beneficial owners of trusts and other financial constructs should also be identified. Moreover, the Federal Council has stated that the issues of regularisation of the past and market access are to be addressed and solutions sought in negotiations on the automatic exchange of information with the EU and EU member states.
Howard Bloomberg, a forensic account and certified fraud examiner of Atlanta, Georgia, pleaded guilty on Friday to failing to file a Foreign Bank Account Report (FBAR) for the year 2008. Mr. Bloomberg opened a bank account at UBS AG in July 1997. The value of Mr. Bloomberg’s account increased to approximately $930,000 in 2001, and he routinely wired funds from the UBS account to his U.S. accounts. He closed the UBS account in April 2008 and wired the balance of over $540,000 to the U.S.
For having admitted to not filing the 2008 FBAR, Mr. Bloomberg has agreed to pay a penalty of $278,397, representing 50% of highest balance in 2008, and file accurate FBARs from 1997 to 2008. At sentencing, currently scheduled for December, Mr. Bloomberg faces a maximum of five years’ imprisonment and 3 years’ supervised release. According to the U.S. Attorney for the Northern District of Georgia, Sally Quillian Yates:
The era of hiding money in secret Swiss bank accounts is over. Citizens should understand that failing to abide by their banking disclosure obligations to the U.S. Treasury Department could mean criminal prosecution.
(Press release here).
In addition, the trial of Raoul Weil is set to begin next Tuesday, October 14, in Florida. Mr. Weil is the former head of UBS’s global wealth-management business who was indicted in 2008 for allegedly supervising 60 private bankers who managed the secret assets of U.S. account holders. Mr. Weil appeared in court in 2013 and is currently living under house arrest in New Jersey.
For information on all prosecutions under the Department of Justice’s Offshore Compliance Initiative, which began in 2008 with its investigation of UBS, see its “scorecard” here.
Yesterday, the Department of Justice announced that Credit Suisse AG pleaded guilty to having assisted U.S. taxpayers in evading the payment of U.S. taxes and agreed to pay a penalty of $2.6 billion. Deputy Attorney General James M. Cole described this announcement as “an historic guilty plea” and “the largest monetary penalty of any criminal tax case ever.”
Attorney General Eric Holder described the conduct of Credit Suisse as follows:
The bank actively helped its account holders to deceive the IRS by concealing assets and income in illegal, undeclared bank accounts. These secret offshore accounts were held in the names of sham entities and foundations. This conspiracy spanned decades. In the case of at least one wholly-owned subsidiary, the practice of using sham entities to conceal funds began more than a century ago. Credit Suisse not only knew about this illegal, cross-border banking activity; they willfully aided and abetted it. Hundreds of Credit Suisse employees, including at the manager level, conspired to help tax cheats dodge U.S. taxes.
In the course of these activities, Credit Suisse deceived the IRS, the Federal Reserve, the Securities and Exchange Commission, and the Department of Justice. The bank went to elaborate lengths to shield itself, its employees, and the tax cheats it served from accountability for their criminal actions. They subverted disclosure requirements, destroyed bank records, and concealed transactions involving undeclared accounts by limiting withdrawal amounts and using offshore credit and debit cards to repatriate funds. They failed to take even the most basic steps to ensure compliance with tax laws. And when the bank finally began to feel pressure to correct illegal practices and comply with the law – as a result of the Justice Department’s investigation, of which they were notified in 2010 – Credit Suisse failed to retain key documents, allowed evidence to be lost or destroyed, and conducted a shamefully inadequate internal inquiry.
The Statement of Facts can be found here; the plea agreement can be found here. Credit Suisse must now disclose all evidence and information about its U.S. accounts that is required by the Program for Non-Prosecution Agreements of Non-Target Letters for Swiss Banks (“Swiss Bank Program”). This includes, among other things, information on how its cross-border business operated; how Credit Suisse attracted and serviced its account holders; and the total number of accounts held by U.S. persons with the maximum dollar value. Credit Suisse must also supply the number of U.S. persons affiliated with each account, identify whether each account was held by an individual or entity, disclose the name of any financial advisor, attorney or other representative associated with the account, and reveal detailed information about what funds were transferred into and out of the account. The DOJ may then make treaty requests to Switzerland for actual account records that would reveal the names of those U.S. account holders. Unlike the situation with UBS where UBS agreed to pay $780 million and turned over the names of approximately 4,000 U.S. account holders after being specifically authorized to do so by the Swiss government, Switzerland has not enacted legislation that would specifically permit Credit Suisse to turn over U.S. account holder names to the DOJ without violating Swiss banking secrecy laws.
Regarding the Swiss Bank Program, Kathryn Keneally, Assistant Attorney General of the Department of Justice’s Tax Division, spoke at an American Bar Association Section of Taxation meeting last week and stated that Swiss banks that are participating in the program are making disclosures to the DOJ about accounts held by individual U.S. taxpayers. She urged anyone who has not yet come clean to make a disclosure through the U.S. Offshore Voluntary Disclosure Initiative (OVDI) but noted that it may be too late for some people who have already been identified as a result of the information provided via the program. She also noted that some Swiss banks in the program are offering to pay part of the penalty on behalf of its account holders who apply and are accepted to the OVDI. She also mentioned that the DOJ has expanded its efforts beyond Switzerland, with activities in Israel, India, and in the Caribbean. See Allison Bennett, Nonprosecution Program for Swiss Banks Providing Significant Amount of Information (Bloomberg BNA 5/13/2014). [Our full breakdown of the Swiss Bank Program can be found here].
Earlier this week, Kathryn Keneally, Assistant Attorney General of the Department of Justice’s Tax Division, spoke at the 2nd Annual International Tax Enforcement Conference in Washington and said that the Tax Division will be strictly enforcing the deadlines of its program available to Swiss banks. See Lydia Beyoud, DOJ Will Hold Firm on Deadlines for Swiss Banks to Make Disclosures (Bloomberg BNA 3/19/2014).
The next deadline in the process for the Swiss bank program is April 30 where Swiss banks that have indicated their interest in participating in the program must provide a plan to the DOJ of how each bank will become compliant with respect to its U.S. accountholders. More specifically, Swiss banks have to provide information on how it structured, operated, and supervised its cross-border business, including the name and function of the individuals responsible for that business; how account holders were attracted and serviced by the bank; and the total number of U.S. accounts and the maximum aggregate dollar value of each account in existence on August 1, 2008, opened between August 1, 2008 and February 28, 2009, and opened after February 28, 2009. [Our full breakdown of the program can be found here].
The DOJ has received 106 letters from Swiss banks requesting to participate in the program, although some banks may drop out as they move through this process. In her remarks yesterday, Ms. Keneally emphasized that locating those who use foreign bank accounts to evade taxes will be a main priority of the Tax Division for the foreseeable future:
If you have people who come to you and are doing anything other than coming into compliance at this point, I simply can’t imagine what they’re thinking because we’re going to be on this for a while.
Along these lines, President Obama is seeking a substantial boost to the IRS’s budget for fiscal year 2015, proposing to increase its budget by $1.2 billion for a total of $12.5 billion. See Obama Budget Seeks $12.5 Billion for IRS to Combat Fraud, Boost Taxpayer Services (Bloomberg BNA 3/18/2014). While part of the increase is directed to reduce fraudulent returns filed using information obtained from identity theft, an increasing trend in this area, it would also be utilized to increase tax law enforcement activities, a focus of this administration in its effort to reduce the estimated $450 billion tax gap.
Finally, last week, the DOJ announced that a Swiss banker pleaded guilty to conspiring to defraud the IRS through his banking and investment services provided to U.S. customers on behalf of Credit Suisse Group AG, one of the 14 Swiss banks currently under U.S. criminal investigation.
In a statement of facts accompanying the plea, Swiss citizen Andreas Bachmann admitted that between 1994 and 2006, he engaged in a conspiracy to assist U.S. customers in evading U.S. tax laws by concealing assets and income in secret Swiss bank accounts. Mr. Bachmann would conduct two annual trips to the U.S., which were sanctioned by executive management of the bank, to meet with U.S. customers for banking and investment purposes. Apparently, Mr. Bachmann had been told by the CEO that his actions would violate U.S. law and that “[y]ou know what we expect of you – don’t get caught.” During his meetings with U.S. customers, he counseled them from retaining paper statements of their secret accounts and advised making transfers of amounts smaller than $10,000 to avoid reporting requirements. He also would conduct cash transactions among U.S. customers. Mr. Bachmann also worked with another individual, co-defendant Josef Dörig, who formed his own company specializing in the formation and management of nominee tax haven entities for U.S. customers. Between 20 and 30 U.S. customers, who were not yet identified, were serviced by Mr. Bachmann.
Mr. Bachmann is scheduled to be sentenced on August 8, 2014, and he potentially could receive a sentence of five years’ imprisonment. In his plea agreement, Mr. Bachmann has agreed to cooperate with the U.S. regarding any criminal activity known to him, including providing testimony, documents, and debriefings with the U.S. on this and other matters. Should he cooperate to the degree sought by the U.S., then the U.S. has the right to seek a §5K departure at the time of Mr. Bachmann’s sentencing. This guilty plea now places additional pressure on Credit Suisse to resolve the U.S. criminal investigation so as to avoid or mitigate what appears to be significant exposure for aiding and abetting the violation of U.S. tax laws by account holders.
We have reported on the Justice Department’s program offered to Swiss banks and targeted to identifying U.S. taxpayers that have not disclosed foreign accounts to the IRS. [See prior posts here, here and here]. It has now been reported that one-third of all Swiss banks applied to the program. [See Swiss Banks Seek Tax Amnesty as Third Accept U.S. Offer, Bloomberg News, by David Voreacos; DOJ Tax AAG Keneally Reports on Swiss Banks Joining DOJ Swiss Bank Program (1/27/14), Federal Tax Crimes, by Jack Townsend]. With this level of participation, the DOJ likely would view the program as a success.
Kathryn Keneally, Assistant Attorney General for the Tax Division, disclosed at an ABA conference in Phoenix this weekend that 106 Swiss banks applied to the program. The scope of the program had previously been unknown. Swiss banks had until December 31 to apply to the program, and as of that date, only 30 or 40 banks had publicly declared that they had applied. However, the program did not require that a participating bank make a public disclosure about its application status. At the conference, Attorney Keneally told attendants that the DOJ viewed every bank in the program as a new source of information and would pursue leads whether the funds in the accounts went to other Swiss banks or to banks in other countries.
Also as we have reported here previously, U.S. taxpayers who have or had any kind of interest in an unreported Swiss bank account should strongly consider disclosing that account now through the IRS Offshore Voluntary Disclosure Program (OVDP). The OVDP is a voluntary compliance initiative whereby individuals can receive amnesty from criminal prosecution for their previously unreported offshore bank accounts in exchange for filing amended tax returns and FBARs, and paying all back taxes, interest, and penalties. Because of additional swift deadlines set in this program, taxpayers must act quickly. A participating Swiss bank has only 120 days from December 31, 2013 (with one potential 60-day extension) before it must begin to turn over account information to the DOJ. Once the DOJ receives information about such an account holder, s/he is no longer eligible for the OVDP and may have to resolve any tax-related issues in another, potentially more expensive or litigious, manner.