Lance Wallach
On August 1, 2006, the U.S. Senate’s Permanent Subcommittee
on Investigations (PSI), a branch of the Committee on Homeland Security and
Governmental Affairs, released a report in conjunction with a Senate hearing
that revealed alarming statistics regarding wealthy Americans’ love affair with
offshore banking. The PSI report culminated in the subcommittee’s
investigation into tax haven abuses, providing the most detailed look at
high-level tax schemes to date. The report revealed that an alarming
number of rich Americans are using offshore accounts to evade taxes, and
suggested that law enforcement would be unable to control the growing
misconduct. Senator Carl Levin, the PSI Chairman, stated, “The universe of
offshore tax cheating has become so large that no one, not even the United
States government, could go after it all.” This investigation marked the
first salvo of the federal government’s new attack on offshore tax evasion. The
principal focus of this attack appears to be unreported offshore bank accounts. Due
to its stringent banking laws and its stronghold on foreign money, Switzerland
has historically been considered a bastion for banking secrecy, and a favorite
place for U.S. residents to hold such accounts. While there is an existing
tax information exchange agreement (TIEA) between the United States and
Switzerland—last significantly revised in 2003—a judicial battle has evolved
over the United States’ new efforts to focus its attack on Swiss accounts and
obtaining account-holder information from UBS.
The policy goals of the United States are clearly
legitimate, but the means of obtaining the information are overreaching given
how vigorously the United States guards its own legal exceptionalism. The Swiss
are understandably concerned that the United States is not respecting Swiss
domestic law. After all, the United States has personal jurisdiction over its
own citizens; therefore, there should be better ways of obtaining this
information while simultaneously respecting the domestic laws of another sovereign
country, especially a friendly country such as Switzerland. This paper will
dissect the intricacies and arguments surrounding the U.S. attack on offshore
banking; discuss the U.S.-Swiss TIEA; and take a detailed look into the
development, policy implications, and consequences of U.S. v. UBS AG.
Especially in this time of economic turmoil, the government
is concerned about billions of dollars of lost revenue from unpaid taxes.
Senator Carl Levin, as Chairman of the PSI, is the U.S. senator leading the
investigations into offshore tax evasion. Not only do the offshore schemes
targeted by Senator Levin and the PSI drastically reduce the U.S. government’s
ability to monitor its citizens’ financial situations, but they also significantly
increase the gap between taxes owed and taxes paid. The U.S. government has a
strong interest in uncovering these schemes. According to Senator Levin, such
schemes must be shut down because they undermine the integrity of the American
tax system and render the government unable to “pay for critical needs, avoid
going deeper into debt, and protect honest taxpayers.” Specifically, these tax
schemes “[rob] the Treasury of more than $100 billion each year, and [shift]
the tax burden from high income persons and companies onto the backs of middle
income families.” Additionally, strict offshore secrecy rules, such as those
implemented by Switzerland, “make it possible for taxpayers to participate in
illicit activity with little fear of getting caught.” These laws permit
offshore service providers to engage in procedures that allow them to go to
“extraordinary lengths to protect their U.S. clients’ identities and financial
information.” These “perks” hinder U.S. tax and regulatory authorities in such
a way that it is “difficult, if not impossible, for U.S. law enforcement to get
the information they need to enforce U.S. tax laws.”
At the G-20 summit in London on April 20, 2009, the United
States, the United Kingdom, France, and Germany each sought to pressure
financial centers worldwide to modify their banking secrecy laws. While each
country had its own reasons f or exerting such pressure, this part of the paper
focuses on the United States’ reasons for seeking to modify international
banking secrecy laws. These reasons include the discovery of a scheme involving
two billionaire brothers that gave credence to the concerns outlined in the
2006 PSI investigation, the government’s desire to rein in tax evaders
through the Voluntary Disclosure Initiative, the inadequacy of
international tax examinations and the Qualified Intermediary (QI) program to
enforce tax compliance, and the existence of non-filers associated with
foreign bank accounts.
In September 2006, Forbes ranked Samuel Wyly on its list of
richest Americans. Forbes estimated Sam’s net worth to be around $1.1
billion, earned mostly from investments. Sam’s older brother Charles has a
personal portfolio almost equal to Sam’s. The Wyly brothers, who are Texan
entrepreneurs, are notorious not only for their eye-popping wealth, but also
for the multiple tax evasion investigations they have incurred by separate
federal and state agencies.
In 2005, Michael’s
Stores, Inc. released a statement conceding that the U.S. Securities and Exchange
Commission and the New York County District Attorney were investigating the
stock transactions of the Wyly brothers, the company’s president and vice
president. However, this charge was small compared to the investigation
revealed in the previously mentioned 2006 PSI report. According to that
investigation, early in the 1990s the brothers set about establishing
fifty-eight offshore trusts and corporations, which they operated for more than
thirteen years without alerting U.S. authorities. The brothers set up the
trusts in the name of individual family members, and located them in the Isle
of Man—a noted tax haven. To move funds abroad, the brothers transferred over
$190 million in stock option compensation from publicly traded U.S. companies
to offshore corporations, Michael’s being only one of many. When confronted
about the staggering amount of untaxed money, the billionaire brothers “claimed
that they did not have to pay tax on this compensation because, in exchange
[for their investments], the offshore corporations provided them with private
annuities which would not begin to make payments to them until years later.” Meanwhile,
the brothers were having their options cashed in and the proceeds invested
without disclosing the transactions to the SEC.
The PSI traced “more
than $700 million in [untaxed] stock option proceeds that the brothers invested
in various ventures they controlled, including two hedge funds, an energy
company, and an offshore insurance firm.” To add insult to injury, the
brothers also used the offshore trusts to allocate $600 million of untaxed
dollars to purchase real estate, jewelry, and artwork for themselves and family
members. These personal purchases were made under the pretense that the
brothers “could use offshore dollars to advance their personal and business
interests without having to pay any taxes on the offshore income.” The
Wyly brothers were able to carry on these evasive and manipulative tax
maneuvers largely because all of their activity was shielded by the offshore
country’s domestic secrecy laws and practices.
Despite their funds being offshore, the Wylys directly
controlled all the accounts and assets. “[T]he brothers and their
representatives communicated [their] directives to a so-called trus t protector
who then relayed these directions to the offshore trustees.” These
trustees never rejected a Wyly order nor initiated any action without the
brothers’ approval. Senator Levin explained that it was simple for these
billionaire brothers to take advantage of a practice dubbed the “Foreign Trust
Loophole.” The Wylys’ offshore trustees had “discretion” to name beneficiaries
of the offshore trusts, which were, for paperwork purposes, companies in the
trustees’ countries. However, the application of this discretion had
already been determined, since the trustees had been informed that trust assets
were to go to the Wyly children upon the death of their respective fathers. The
trustees also knew they could be replaced if they failed to comply with the
Wylys’ instructions. Additionally, in accordance with the trust protector’s
orders, the trustees authorized millions of dollars in trust income to be
invested in Wyly businesses and used to purchase personal property for the Wyly
family.
When called by the PSI in 2006, Sam and Charles Wyly stated
they would each invoke their Fifth Amendment right against self-incrimination
and thus were not asked to testify. A statement rele ased by the
billionaire brothers’ attorney, William Brewer, insisted that Sam and Charles were
innocent, stating, “The Wylys believe they have paid all taxes due.”
Every United States person who has one or more foreign bank
account(s) that at any point during the year reaches an aggregate balance of
over $10,000 is obligated to file a report with the United States Department of
Treasury listing all foreign accounts. Under this regulation, a “United
States person” is any of the following: (1) a citizen or resident of the United
States; (2) a domestic partnership; (3) a domestic corporation; or (4) a
domestic estate or trust. “Financial accounts” include bank accounts,
brokerage accounts, mutual funds, securities, derivatives, financial instrument
accounts, and debit and prepaid credit cards maintained with a financial
institution. U.S. investors in offshore hedge funds and private equity
funds are also required to file a Report of Foreign Bank and Financial Accounts
(FBAR).
The failure to file an FBAR or to disclose foreign accounts
can lead to significant civil and criminal penalties. Civilly, a person can be
fined up to $10,000 for non-willful noncompliance and up to the greater of
$100,000 or fifty percent of the amount of the underlying account’s balance at
the time of the violation if the noncompliance is determined to be willful. A
person can be criminally prosecuted and fined either up to $250,000 and
imprisoned for five years or, if the violation occurred in tandem with any
other U.S. law violation, the individual will be fined $500,000 and imprisoned
for ten years The penalties are also applicable if a person supplies false
information or omits information.
While the statute authorizes the assessment of the maximum
penalty for violations, the IRS adopted revised FBAR penalty guidelines in July
2008 in an attempt to encourage non-filers to come forward. Under this
revision, if the failure to have previously filed the required FBAR was not
“willful,” and the threshold conditions were met, the guidelines suggest
penalties ranging from $5,000 to $15,000, depending on the particular amounts. If
a “willful” non-filer meets the same threshold conditions, penalties can range
from five percent to fifty percent of the maximum balance in the particular
account for the year in question. The Voluntary Disclosure Initiative,
mentioned above, was an additional IRS step aimed at bringing non-filers into
the fold by offering reduced penalties.
Despite the Voluntary Disclosure Initiative and several
other IRS initiatives targeting offshore tax schemes, tax evasion and
fraudulent crimes involving offshore entities remain difficult to detect and
prosecute. Abusive and evasive offshore tax schemes present challenges
related to the oversight of foreign accounts, the enforcement of myriad tax laws,
the complexity of offshore financial transactions and relationships among
entities, the lack of jurisdictional authority to pursue information, the
specificity of information necessitated by information-sharing agreements, and
the difficulties obtaining information from third-party financial institutions. This
Section specifically addresses IRS time constraints, the Qualified Intermediary
(QI) program, and the pending Stop Tax Haven Abuse Act in Congress.
A major issue for agency enforcement policy is the time
constraint the IRS faces when conducting examinations that include offshore tax
issues. By and large, offshore examinations take much longer than do their
domestic counterparts. A 2009 U.S. Government Accountability Office report
shows that offshore examinations take, on average, five hundred more calendar
days to develop and examine than do domestic audits. Reasons behind this
lag include, but are not limited to, technical complexity and difficulty
accessing information from foreign sources. Despite the extra time required,
offshore examinations have the same statute of limitations as domestic examinations,
which prevent the IRS from assessing taxes or penalties more than three years
after a return is filed. This often leads to the IRS prematurely ending an
offshore examination or choosing not to open one at all, despite evidence of
likely noncompliance. IRS Commissioner Shulman testified that it would be
helpful for Congress to extend the statute of limitations from three years to
six years to assess offshore tax liability. However, Congress has yet to
codify this request.
Another problem for the IRS is the Qualified Intermediary
(QI) program. While it is an effective program where properly utilized, it
is insufficient to address all instances of offshore tax evasion. Michael Brostek
explains, “Under the QI program, foreign financial institutions voluntarily
report to the IRS income earned and taxes withheld on U.S. source income,
providing some assurance that taxes for U.S. source income sent offshore are
properly withheld and income is properly reported.” Unfortunately, significant
gaps exist in the information available to the IRS about offshore account
owners. Additionally, a low percentage of U.S. source income sent offshore
flows through QIs. In 2003, for example, only about twelve percent of $293
billion in U.S. income flowed through QIs. The rest—about $256
billion—flowed through U.S. withholding agents, who, unlike QIs that are
required to verify account owners’ identities, are permitted to accept at face
value account owners’ self-certification of their identities. The reliance
on self-certification leads to a greater potential for improper withholding
because of misinformation or fraud.
Due to the extensive
number of problems facing the IRS in offshore tax enforcement, Commissioner
Shulman has conceded that “[t]here is general agreement in the tax
administration community that there is no ‘silver bullet’ or one strategy that
will alone solve the problems of offshore tax avoidance.” However, despite this
grim reality, the IRS has pursued a number of avenues to get a handle on the
situation. The Senate and the House of Representatives have introduced
identical bills, each entitled the Stop Tax Haven Abuse Act. These bills were
in the committee stage of both Congressional Houses, which is the first step in
the legislative process, but as of February 2011 had not become law. On
its end, the IRS has “both increased the number of [international audits since
November 2008] and prioritized the stepped-up hiring of international experts
and investigators.” The IRS is also “exploring how to improve information
reporting and sharing.” Because QI allows important insight into the
activities of U.S. taxpayer s at foreign banks and financial institutions, the
IRS is continuously looking at how to improve the QI program.
The IRS has long had a voluntary disclosure practice, under
which taxpayers may voluntarily disclose non-compliance. Although this
practice creates no substantive rights for the taxpayer, it is one factor for
the IRS to consider in determining whether to criminally prosecute the
taxpayer. On March 23, 2009, the IRS, in line with the government’s growing
resistance to continued tax evasion as highlighted by the case of the
billionaire brothers, announced a new, temporary initiative specifically
targeted at offshore accounts that they hoped would encourage tax evaders to
return to legal activity. This new program, called the Voluntary
Disclosure Initiative, significantly lowered the penalties for unpaid taxes for
those individuals or companies that voluntarily disclosed their offshore
accounts. The program took effect on March 23, 2009, and initially
terminated on September 23, 2009. It was available for all taxpayers with
legal source income who made timely, accurate, and complete disclosures to the
IRS, satisfying the requirements of the Internal Revenue Manual, and paid—or
arranged to pay—the taxes due.
The IRS’s intent was
two-fold. First, the IRS hoped to incentivize noncompliant, eligible
taxpayers to become compliant by setting forth a favorable penalty framework. Second,
the government hoped to recoup the lost tax revenue. The policy goals
behind the initiative included providing predictable and effective rules to
deal with the potentially large class of noncompliant U.S. taxpayers using
offshore accounts without proper disclosure or tax payments, reducing the
difficulty of obtaining information from offshore banking countries, and
satisfying requests for certainty from tax professionals.
To reach the agency’s
goals, IRS personnel could now apply a new penalty framework to voluntary
disclosure requests of previously unreported offshore entities and accounts. Under
the new Voluntary Disclosure Initiative,
the IRS would assess taxes and interest for the six years prior the voluntary
disclosure. The taxpayers who took advantage of the program were required
to go back and file or amend all returns for the applicable period, including
filing the FBAR. The IRS would assess penalties, including accuracy or
delinquency penalties, on taxes that should have been reported, unless there
was reasonable cause to support the discrepancy. The sole penalty that
would apply would be a penalty equal to twenty percent of the foreign account
balances in the year in which the balances were at their highest. The
penalty could be reduced to five percent in the case of certain inherited
accounts.
The temporary program, like the ongoing voluntary disclosure
practice, does not guarantee immunity from prosecution, but it is one of the
best methods for taxpayers to minimize the likelihood of criminal penalties. For
cases involving unreported offshore income in which the taxpayer did not use
the Voluntary Disclosure Initiative, the IRS is “instructing [the] agents to
fully develop the case pursuing both civil and criminal penalties, including
the maximum penalty for the willful failure to file an FBAR report and the
fraud penalty.”
In conjunction with this program, the IRS posted a form to
its website that allowed taxpayers to provide the necessary information to be
considered for the Voluntary Disclosure Initiative. According to Bruce
Friedland, IRS spokesman, this form was designed to streamline the process and
cut down on the back-and-forth among taxpayers, their advisers, and the IRS
regarding what information is required. The implementation of this form
appears to have paid off, as the IRS is pleased with the initiative’s response. Friedland
stated that during the week of July 20, 2009 alone, the IRS received more than
four hundred requests to participate in the program. This number
represents more than four times the total number of requests received during
2008 in its entirety.
A Tax Information Exchange Agreement (TIEA) is a bilateral
agreement between two sovereign countries governing a mutual exchange of
information. The goals behind the United States’ initiation of its tax
information exchange program were to assure the accurate assessment and
collection of taxes, to prevent fiscal fraud and tax evasion, and to develop
improved sources for tax matters in general. The United States entered a TIEA
with Switzerland—a powerhouse in offshore banking—effective December 19, 1997. Article
26 of The Convention Between the United States and Swiss Confede ration for the
Avoidance of Double Taxation with Respect to Taxes on Income (Convention)
provided that the authorities of the two countries would exchange tax
information as necessary for the “prevention of tax fraud or the like in
relation to taxes which are subject …” to the Convention. This exchange of
information included both civil and criminal matters. This Section looks
at the 2003 changes to the Convention followed by a discussion of the
policy behind updating the TIEA.
A. The 2003 Changes
Controversy surrounded the definition of “tax fraud” almost
immediately upon inception of the Convention. Under Swiss law, tax fraud
generally occurs only when documents are forged or falsified, or when there is
a scheme of lies to deceive tax authorities. The United States has a more
liberal view of what tax fraud entails, including things such as the failure to
file a tax return or omission of certain income from a return. The changes
employed under the 2003 mutual agreement lean toward the more liberal American
view.
On January 23, 2003,
the U.S. and Swiss authorities entered into a mutual agreement that established
new guidelines on how to properly implement the Convention. The agreement
was intended to clarify what behaviors constituted “tax fraud” by outlining
fourteen hypothetical situations where tax fraud is recognized. This list
was not meant to be exhaustive and only provides basic guidelines for each
country’s constituents and financial institutions. The countries also
agreed upon six “understandings.” The first understanding emphasizes both
countries’ renewed efforts to work together to the greatest extent possible to
support the tax administration of both countries. The second understanding
states that when information is requested, the statute of limitation of the
requesting party applies. The third understanding allows information to be
requested for both criminal and civil penalties. The fourth understanding sets
forth three examples, provided for in the original agreement, that establish
when a country can request information if it is believed or suspected that
there is tax fraud being committed. The fifth understanding stipulates
that each country will share information when the other country has a
“reasonable suspicion” that certain conduct would constitute fraud. The
sixth understanding states that these preceding examples will constitute tax
fraud under Article 26 of the Convention.
B. Policy Behind Updating the TIEA
TIEAs, entered into mutually, can foster advantageous symbiotic
relationships. Many countries, including the United States and countries within
the European Union, believe that Switzerland is a hotbed for maintaining abusive
tax avoidance, and that its secrecy laws prevent other countries from
effectively combating tax fraud. Changes to the agreement could help
Switzerland shake off the recent bad press regarding how its secrecy laws are
causing other countries to lose hundreds of millions of dollars in tax revenue. Instead
of vigorously prosecuting offshore fund holders, a renewed faith in the Swiss
banking system could encourage other countries to promote offshore banking,
allowing Switzerland to maintain its status as an epicenter of banking. Concurrently,
updates to the convention will help the United States increase its surveillance
abilities, assist in closing its tax gap, fulfill its TIEA program goals, and
recoup millions in lost tax revenue.
Enacted changes could
facilitate more effective tax information exchange between the United States
and Switzerland. However, despite intentions to improve information
sharing, changes may affect how business in Switzerland is run with respect to
U.S. and other foreign taxpayers. Any change has the potential to disrupt the
cultural landscape of a country that prides itself on banking secrecy and
financial security.
IV. The UBS Case
UBS AG (UBS), based in Switzerland, is one of the largest
financial institutions worldwide. Effective January 1, 2001, UBS
voluntarily entered into a QI agreement with the IRS. Like in most U.S. QI
agreements, UBS agreed to identify and document any customers who held U.S.
investments or received U.S. source income in accounts maintained with UBS. If
a U.S. customer refused to be identified under the QI agreement, UBS was
required to apply a backup withholding tax at a twenty-eight percent rate on
payments made to the customer. Further, UBS was to bar the customer from
holding any U.S. investments. Eventually, UBS failed to uphold its end of
the agreement and the U.S. government felt compelled to bring judicial action.
This Section addresses why UBS became the linchpin in the
U.S. attack on bank accounts promoting tax evasion. It outlines the
procedure taken against the bank in terms of both criminal and civil judicial
action and the policy issues surrounding the litigation. Finally,
this Section dissects the outcome of the most current civil litigation facing
UBS.
A. Why UBS?
On July 17, 2008, the PSI, still adamantly focused on the
fight against tax evasion, released a staff report entitled Tax Haven
Banks and U.S. Tax Compliance (2008 PSI Report). This report, as
damning to U.S. offshore tax enforcement as was the 2006 PSI report, revealed
that many of UBS’s American clients refused either to be identified, to have
taxes withheld, or to sell their U.S. assets as required under the standing
2001 QI agreement. In order to retain the high volume of wealthy U.S.
customers, UBS bankers assisted the U.S. taxpayers in concealing the ownership
identity of the assets held in offshore accounts by helping to create nominee
and sham entities in various non-U.S. jurisdictions. These entities were then
claimed to not be subject to reporting requirements specified under the QI
agreement. The report alleges that UBS not only assisted in these tax-evasion
schemes, but also purposefully marketed the strategies to wealthy Americans. The
2008 PSI report documented that the United States loses around $100 billion
annually to offshore tax evasion. According to the U.S. Senate and U.S.
Department of Justice prosecutor’s investigation, U.S. clients hold about
nineteen thousand accounts at UBS, containing an estimated $18-20 billion in
assets.
Shortly following the release of this information, Bradley
Birkenfeld, an American citizen and a UBS Geneva-based director of wealthy
American clients with offshore accounts from 2002-2006, pleaded guilty to the
charge of helping American billionaire Igor Olenicoff evade millions of dollars
in federal taxes. Birkenfeld’s testimony compounded UBS’s precarious
situation. Specifically, the former director testified that UBS bankers
used a variety of ruses to court American clients and to help them dodge taxes.
UBS advised bankers traveling to the United States to tell airport customs
agents that the trip was for pleasure and not business. Additionally, the bank
urged clients to destroy banking records to conceal their offshore accounts. Some
American clients were even instructed to “stash” watches, jewelry, and artwork
bought with money hidden offshore. UBS went so far as to encourage clients
to use Swiss credit cards so the IRS could not track purchases. Birkenfeld further
stated that in his official position he served as a courier for his clients,
getting checks out of the United States and depositing them in accounts in
Denmark, Switzerland, and Liechtenstein. He testified that he knew he was
breaking the law but did so because of the “incentives” UBS offered him. Birkenfeld’s
cooperation with the government in the formative stages of the UBS case was
vital to the U.S. Federal Government’s tax evasion inquiry.
B. The Case
A little less than a month prior to the 2008 PSI report’s
release, the Federal Bureau of Investigation made a formal request to travel to
Switzerland to probe a multi-million dollar tax evasion case involving UBS. The
UBS fallout subsequently progressed at a furious pace. At the 2008 PSI
hearing, held in conjunction with the 2008 PSI Report, Mark Branson, CFO of UBS
Global Wealth Management and Business Banking, testified that, in fact,
compliance failures might have occurred at UBS. He pledged that UBS would
take progressive action to ensure that the activities identified in the 2008
PSI Report would not continue. He stated that UBS would no longer provide
offshore banking services to U.S. customers. Instead, such customers would
only be provided services through U.S.-licensed companies. Additionally, UBS
would no longer permit Swiss-based advisors to travel to the United States to
meet with U.S. customers. Branson further pledged that UBS would comply
with a John Doe summons relating to the UBS accounts held by U.S. residents.
The following day, on July 18, 2008, a federal district
court in Florida granted the IRS permission to issue a John Doe summons to UBS
seeking the names of as many as twenty thousand U.S. citizens who were UBS
customers that failed to meet reporting or withholding obligations. However,
UBS’s legal troubles did not end there. Through a press release, UBS
confirmed on November 12, 2008, that Raoul Weil, Chairman and CEO of UBS Global
Wealth Management and Business Banking and member of the Group Executive Board,
was indicted by a federal grand jury in the Southern District of Florida in
connection with the U.S. Department of Justice’s ongoing investigation of UBS’s
U.S. cross-border business. Weil was subsequently relieved of his position with
the company.
Seemingly in order to
put an end to U.S. judicial action, UBS entered into a Deferred Prosecution
Agreement with the U.S. Department of Justice on February 18, 2009. UBS,
as part of the agreement, agreed to pay $780 million in fines, penalties,
interest, and restitution for defrauding the U.S. government by helping U.S.
taxpayers hide assets through UBS accounts held in the names of nominee or sham
entities. Two hundred million of the $780 million penalty was to be paid
to the U.S. Securities and Exchange Commission to settle the charge of “acting
as an unregistered broker-dealer and investment advisor” and enforcement action
against the bank. Pursuant to the agreement, UBS waived the indictment and
consented to the filing of one criminal count charging UBS with conspiracy to
defraud the U.S. government and the IRS in violation of U.S. criminal law. The
U.S. government agreed to recommend dismissal of the charge if UBS met all
monetary and other obligations under the Deferred Prosecution Agreement. In
an unprecedented move made to satisfy the agreement obligations, the Swiss
Financial Markets Supervisor Authority disclosed to the U.S. government the
identities of, and account information for, about two hundred and fifty U.S.
customers of UBS’s cross-border business.
The ink had barely
dried on the Deferred Prosecution Agreement before the U.S. government filed a
civil suit on February 9, 2009 in a Miami federal district court against UBS to
reveal the names of as many as fifty-two thousand American customers. The
Justice Department’s lawsuit alleged that the bank and the customers had
conspired to defraud the IRS and the U.S. Federal Government of
legitimately-owed tax revenue. The suit further alleged that the indicated
customers had 32,940 secret accounts containing cash and 20,877 accounts
holding securities. The suit claimed that Swiss-based bankers actively marketed
UBS’s services to wealthy U.S. customers within U.S. borders. Specifically,
the government claimed that U.S. contacts occurred through UBS-sponsored
sporting and cultural events that targeted wealthy Americans. UBS
documents filed with the lawsuit show that UBS bankers came to the United
States to meet with U.S. clients almost four thousand times a year, a clear
violation of U.S. law. The government stated that the bank trained its
officers to avoid detection by U.S. authorities. In addition to the suit,
the United States asked a federal judge to enforce the John Doe summons served
upon UBS in July of 2008.
UBS, backed by the
Swiss government, emphatically indicated it would withhold the names, calling
the U.S. demand a “fishing expedition” that would breach bilateral tax
agreements and Swiss bank secrecy laws. The bank believed it had a substantial
defense to the enforcement of the John Doe summons and vocalized its intent to
vigorously contest the enforcement of the summons in the civil proceeding, as
permitted under the terms of the Deferred Prosecution Agreement. UBS claimed that
the IRS’s summons sought information regarding a substantial number of
undisclosed accounts maintained by U.S. citizens at UBS in Switzerland, whose
information is protected by Swiss financial privacy laws. As breaching
confidentiality is a criminal offense in Switzerland, to comply with the IRS’s
summons would mean Swiss UBS employees would have to violate domestic law,
resulting in criminal prosecutions in Switzerland. In response to the
summons, the Swiss’s People’s Party called for retaliation against the United
States and for urgent debate in Parliament on ways to protect Swiss banking
secrecy from “further foreign blackmail.”
On March 4, 2009, the PSI held another hearing, called the
Tax Haven Banks and U.S. Tax Compliance—Obtaining the Names of U.S. Clients
with Swiss Accounts (2009 PSI Hearing), directed at enforcing UBS compliance
with the John Doe summons. According to John DiCicco, Acting Assistant Attorney
General of the Tax Division of the U.S Department of Justice, UBS’s challenge
to the government’s motion to enforce the John Doe summons, including an appeal
from an adverse ruling, would not be considered a breach of the previously
signed Deferred Prosecution Agreement.
However,
if on completion of litigation the Court were to order UBS to produce the
documents sought and hold UBS in contempt for failure to do so, UBS’s
noncompliance may be determined to be a material breach of the Deferred
Prosecution Agreement. If this were found to be the case, the U.S.
government would be permitted to proceed with the criminal prosecution of UBS.
Mark Branson also testified at the 2009 PSI Hearing, but in
support of UBS. Branson addressed the progress UBS had made under the
requirements of the agreement. He stated that UBS had sought to comply
with the John Doe summons without violating Swiss domestic law. According
to Branson, Swiss privacy law prohibited UBS from producing responsive
information located in Switzerland, which is why UBS had only been able to
produce information responsive to the summons that was located in the United
States. Branson stated that it was his belief that UBS had currently complied
with the summons to the fullest extent possible without subjecting its
employees to criminal prosecution in Switzerland. He then emphasized that
the United States’ continued pressure to enforce the summons would be a
violation of the original 2001 QI agreement and the income tax treaty between
the two countries.
This warning did not halt U.S. advances in seeking this
information. On March 18, 2009, the Department of Justice extended its
investigation into UBS offshore tax fraud to include independent attorneys and
accountants in Switzerland and the United States. Of three individuals currently under
investigation, one is a Zurich-based accountant who runs a boutique finance and
trust company, and two are brothers who are attorneys at a law firm
located in Zurich and Geneva. A criminal case is being built against these
individuals, who are each suspected of having traveled with Swiss UBS bankers
to the United States to work with American clients to evade U.S. taxes. On
April 2, 2009, Steven Rubenstein of Boca Raton, Florida became the first U.S.
citizen arrested in connection with the tax probe of UBS, allegedly hiding
assets at UBS in order to avoid tax collectors. Rubenstein—a yacht company
accountant—deposited more than $2 million in Kruggerrand gold coins into his
UBS accounts and bought securities worth more than 4.5 million Francs. He
is also accused of meeting with UBS Swiss bankers in several locations around
South Florida from 2001 to 2008. On August 10, 2009, Rubenstein signed a
plea agreement with the Department of Justice consenting to these charges in
exchange for lowered sentencing guidelines.
Fuel was added to the fire when Jeffrey Chernick of
Stanfordville, New York, a representative for Hong Kong and Chinese toy
manufacturers, pleaded guilty on July 28, 2009 to filing a false tax return by
hiding $8 million through offshore accounts with UBS and another unnamed Swiss
bank. Chernick testified that for the past decade, he had used offshore
accounts in the two banks expressly to avoid taxation. According to Chernick,
the Swiss bankers removed his name and account numbers from his offshore
account statements and lied to U.S. customs agents regarding their reasons for
traveling to the United States. He also testified that there was a $45,000
bribe allegedly paid to a Swiss official on Chernick’s behalf in order to
obtain information on the U.S. investigation into UBS. Court records
document the extraordinary lengths Chernick went to avoid detection, including
setting up a sham $700,000 l an between his company and a second Hong Kong
entity to repatriate funds into the United States to purchase property for his
home in New York.
C. Outcome
With the trial date fast approaching, the U.S. government
and UBS reported in a status conference meeting with U.S. District Judge Alan
Gold that they had reached an “agreement in principle.” ;Terms were not
immediately announced, and Judge Gold stated the parties would likely present a
written breakdown at the August 7 status conference meeting with a final
agreement to be approved by the court shortly thereafter. In accordance
with the latest development, Judge Gold pushed the hearing date back to August
10 to give U.S. and UBS negotiators time to finalize a tentative agreement.
Swiss media reports from July 26 indicated U.S. negotiators
expressed a willingness to accept data on a reduced number of accounts held by
U.S. citizens. Under this reported plan, UBS woul d be required to reveal
data only if the client had been visited by Swiss bankers outside the United
States.
On August 12, 2009, the parties initialed a more substantive
agreement, acknowledging it would “take a little time” to sign this agreement
in a final form. Lawyers involved in the case said the settlement could involve
the disclosure of three thousand to more than ten thousand names of American
clients suspected of using offshore accounts to evade taxes. Swiss banking
authorities could disclose the names of investors in those accounts without
breaching the country’s banking secrecy regime, which expressly carves out an
exception for cases involving fraud. This “fraud exception” was the same
principle cited when the bank previously disclosed the names of about two
hundred and fifty UBS clients in conjunction with the Deferred Prosecution
Agreement. Additionally, leaked details of what would be in the finalized
agreement indicated that the UBS- U.S. settlement may prevent a monetary
penalty from being levied against the bank. This is welcoming news to many
investors who feared UBS would have to pay several billion dollars to settle
the dispute.
V. Analysis
Switzerland, normally considered a bastion of banking
secrecy, has come under heavy pressure from the United States, Germany, France,
and Britain to improve practices relating to the enforcement and punishment of
tax evaders. In response to this pressure, this Section addresses the changes
to the current U.S.-Swiss TIEA, the future of Swiss banking privacy law
and how it will affect U.S. offshore banking activity, and the character of
policy decisions.
A. Likely Changes to the U.S.-Swiss
TIEA
Changes were bound to be made to the U.S.-Swiss TIEA given
the enormous amount of civil and criminal litigation involving Swiss banks,
coupled with the U.S. government’s unyielding commitment to eliminate abusive
offshore tax schemes and offshore accounts which lead to gross tax evasion. According
to a June 19, 2009 Department of Treasury press release, the United States and
Switzerland governments had concluded negotiations on an amended tax treaty. The
countries were then expected to sign the protocol within a few months’ time once
Swiss business and local governments were given the chance to comment on the
proposed changes. Switzerland’s Federal Council and Parliament will decide if
the new agreement is permitted to take effect. The Obama Administration is
focused on pushing initiatives to close loopholes that have allowed U.S.
investors to evade taxes using offshore havens, signaling this amendment stands
a good chance of being enacted by U.S. lawmakers. The amendments would revise
the existing U.S.-Swiss treaty to allow for a greater exchange of information
as permitted by a model tax convention adopted by the Paris-based Organization
for Economic Cooperation and Development (OECD).
B. Future of Swiss Banking Privacy
Vis-Ã -Vis The United States
The United States’ case against UBS has strained relations
between the United States and Switzerland because of the blatant challenge to
Switzerland’s diligently guarded banking secrecy laws. While the
settlement could be viewed as good news for UBS regarding the U.S. legal
battleground, the bank could be facing an attack on the home front when the
dust finally settles in America. In disclosing names, UBS could face more
civil suits from account holders claiming that UBS violated Swiss bank secrecy
laws by including their names and account information in any disclosure. UBS
employees may also face criminal prosecution under Swiss law for breaching
confidentiality. All of this is likely to cause significant political
backlash in Switzerland to defend its sovereignty, especially as it relates to
the United States.
The banking sector is such a large employer in Switzerland,
and such a strong source of pride among the Swiss population, that no Swiss
government can eliminate these laws without severe political repercussions. As
such, the political system is likely to continue to respond to the rising
political pressure in Switzerland to defend its sovereignty and its domestic
banking secrecy laws. Swiss Foreign Minister Micheline Calmy-Rey understands
this, and, in response to the UBS litigation, stated, “It is about
Switzerland’s sovereignty. We want our laws to be respected. It is also about
our financial centers and abou t jobs.” Thus, the government will likely
continue to strengthen its bank secrecy violation penalties on the one hand,
while on the other doing as little as possible to placate the United States
with respect to U.S. citizens with unreported Swiss accounts.
The Swiss judicial system is also very likely to take
umbrage to the United States’ attempt to abrogate its laws. The reaction could
include strict and severe enforcement of bank secrecy violation penalties and
criminal sentences. Historically, the Swiss judiciary has often looked at the
application of U.S. laws by U.S. judges to U.S. citizens doing business in
Switzerland as interference with domestic sovereignty, rather than a proper
application of U.S. laws. However, where a U.S. case has involved the
fraudulent conduct of a wealthy American citizen, the Swiss Courts have been
somewhat compliant. In this case, the United States is seeking to enforce its
laws in Switzerland on American citizens who have properly obtained their
wealth, but who have fraudulently not reported such wealth for U.S. tax
purposes. As such, the United States is attempting to broaden the Swiss idea of
fraud beyond what Swiss courts would normally consider under their definition
of “fraud.” The Swiss courts are very likely to push back against such a broad
application.
C. Is this Good Policy?
This litigation is likely to create changes to offshore
banking opportunities and banking secrecy laws in addition to the revised
U.S.-Swiss TIEA. The United States appears to have changed the status quo. The
question remains whether this outcome reflects sound policy. This Section discusses
the effects of this policy, both in terms of interfering with another country’s
sovereignty, and the true purpose and effect of bringing the UBS case.
i. Meddling in other countries’
sovereignty
The United States today seems to interpret its national
interest in terms of projection of U.S. power overseas in addition to
protecting its own borders. This foreign projection has extended from military
power to taxing power. The United States also runs an enormous budget deficit.
Since it has one of the few “worldwide taxation” systems, the United States has
the power to locate all assets of all citizens that may produce income to
ensure compliance of its tax laws. The budget deficit puts pressure on tax
collectors to do so by any means necessary. This has lead the United States to
take the position, as in the UBS case, that U.S. taxing authority trumps
domestic legal authority in foreign jurisdictions like Switzerland.
During the Iraq War, Belgian lawmakers took a similar
position by seeking to indict high-level U.S. government officials, including
the Secretary of Defense. On a financial level, nothing stands in the way of
another sovereign country passing laws, in the name of its national interest,
that would interfere with American citizens’ rights. In a world that is
increasingly connected, the United States cannot afford to abrogate other
countries’ laws, especially the laws of a friendly country like Switzerland.
After all, other countries could review the U.S. position in the UBS case and
determine they have the right to pass a law that its citizens need not pay U.S.
taxes on U.S. source income. If the United States can effect a domestic law
change that affects a foreign sovereign’s domestic laws, there is no reason
that another country could not do the same to the United States. It is not in
the United States’ national interest to stand alone in the world with a
position that it need not respect foreign laws, but that other sovereign
nations must respect U.S. laws.
ii. True purpose of the UBS case and
effect
On the surface, the reason that the United States brought
the UBS case appears to have been to identify the names of American citizens
who had unreported foreign bank accounts overseas at UBS. The United States,
however, probably had a much broader purpose in bringing the case. The broader
purpose was probably to have a deterrent effect on foreign banks and advisors
who assist in creating or facilitating foreign bank accounts. The myriad
network of non-U.S. banks, other financial institutions, advisors, and other
facilitators (collectively referred to as the “Network”) is so deep and vast
that there is no way that the United States could effectively bring actions and
enforce its laws against even a small fraction of the Network. As such, putting
UBS personnel in prison and exacting a very large fine against UBS was the
first, and most important, step in the process. Following that step, incentivizing
U.S. taxpayers to voluntarily come forward was the next most important step
because it had the effect of making the Network aware that U.S. taxpayers may
come forward even without punishing the Network itself. The totality of the
U.S. attack is such that many foreign banks will no longer accept American
citizens as clients. Whereas the common wisdom offshore used to be that the IRS
could not reach foreign jurisdictions to reach the Network, today the opposite
conclusion is widely believed. Thus, as long as the United States continues its
attack, the deterrent goal will likely be met.
Obviously, the more press the United States receives about
cracking down on offshore account holders and the Network, the more of a
deterrent effect there will be on American citizens who might otherwise
contemplate opening up an unreported foreign bank account. If the IRS and the
U.S. government are able get the names of U.S. accountholders at UBS, this
could be a very large weapon in the U.S. government’s arsenal. Lastly,
with increased scrutiny of offshore accounts, owners may have limited access to
their money.
VI. Conclusion
The United States had a very important goal in bringing the
UBS case: deterring taxpayers from opening unreported foreign bank accounts and
deterring foreign banks and advisors from assisting U.S. taxpayers in doing so.
The PSI report spelled out that American citizens have made extensive use of
offshore tax havens to evade taxes, and that traditional law enforcement is
unable to control such misconduct. It makes sense that the largest offshore
banking jurisdiction with bank secrecy laws—Switzerland—would be the initial
target of the U.S. probe. In conjunction with the criminal and civil probe of
UBS, it also stands to reason that the United States would seek to get a more
favorable TIEA in place with Switzerland. The problem with the United States’
attack on UBS is not its goals, but rather its methods. The United States has
traditionally been steadfast in protecting itself from encroachment by laws of
other sovereign nations that contradict U.S. laws. Given this position, the
United States appears to be trying to have it both ways with the rest of the
world—other countries must follow U.S. laws but they should not attempt to make
the United States follow their laws. Given this contradiction, it is
understandable that the Swiss are concerned that the United States is not
respecting Swiss domestic law. The United States, after all, has personal
jurisdiction over its own citizens, and therefore should be able to use other
means of tax enforcement that respect the domestic laws of another sovereign
country, especially Switzerland.
