Legal Reality Newsletter 29 October A. D. 2011Posted: October 28, 2011 | |
29 October A.D. 2011
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——– Original Message ——–
|Subject:||Swiss Banks May Pay Billions, Disclose Names|
|Date:||Mon, 24 Oct 2011 15:06:15 -0500|
Swiss caught up in commercial law.
Swiss Banks May Pay Billions, Disclose Names
By David Voreacos, Klaus Wille and Giles Broom –
Swiss banks will probably settle a sweeping U.S. probe of offshore tax evasion by paying billions of dollars and handing over names of thousands of Americans who have secret accounts, according to two people familiar with the matter.
U.S. and Swiss officials are concluding negotiations on a civil settlement amid U.S. criminal probes of 11 financial institutions, including Credit Suisse Group AG (CSGN), suspected of helping American clients hide money from the Internal Revenue Service, according to five people with knowledge of the talks who declined to speak publicly because they are confidential.
Switzerland, the biggest haven for offshore wealth, wants an end to new U.S. probes while preserving its decades-old tradition of bank secrecy, the people said. The U.S. seeks data on Americans who have dodged U.S. taxes and a pledge by Swiss banks to stop helping such clients, according to the people. The Swiss reached accords this year with Germany and the U.K. on untaxed assets.
“The Swiss would like to get out of this by paying money, and they’ve done that with other countries,” said tax attorney H. David Rosenbloom of Caplin & Drysdale Chartered in Washington, who isn’t involved in the talks. “For the U.S., it’s not primarily a money question. It’s a matter of making sure the laws apply fairly among taxpayers.”
The Swiss government seeks to outline a final accord for the Foreign Affairs Committee of its Parliament’s upper house on Nov. 10, according to a person familiar with the matter. The number of banks that will pay to resolve the U.S. negotiations may extend beyond the 11 under criminal investigation, the people said.
“We are aiming for an all-encompassing solution that will apply to all the banks,” Finance Minister Eveline Widmer- Schlumpf said in an Oct. 4interview in the Swiss capital Bern. “We don’t want to be confronted with the same issues time and again.”
Under accords this year with Germany and the U.K. on untaxed assets, the identity of clients remained secret. The U.S. insists that the Swiss disclose client account data, and the banks may end up handing over data on 5,000 to 10,000 accounts, the people said. A final determination hasn’t been made, they said.
The U.S. Justice Department also may bring criminal charges or civil enforcement actions against any of the 11 financial institutions. They could avoid prosecution by separately paying fines, admitting wrongdoing and disclosing data, the people said. On Aug. 30, the Justice Department requested statistical data from the 11 about their U.S. accounts, which the U.S. has received and is analyzing, the people said.
Credit Suisse, the second-biggest Swiss bank, said July 15 that it was a target of U.S. prosecutors. On July 21, seven Credit Suisse bankers were indicted on a charge of conspiring to help U.S. clients evade taxes through secret accounts.
The group of 11 also includes HSBC Holdings Plc (HSBA), the biggest European bank, Basler Kantonalbank, Wegelin & Co., Zuercher Kantonalbank, and Julius Baer Group Ltd. (BAER), the people said. Three Israeli banks — Bank Leumi Le-Israel BM (LUMI), Bank Hapoalim BM (POLI), and Mizrahi-Tefahot Bank Ltd. (MZTF) — are on the list, as well as Liechtensteinische Landesbank AG and an asset manager, NZB AG, according to the people.
The U.S. crackdown against offshore tax evasion has led to charges against UBS AG (UBSN), the largest Swiss bank; at least 21 foreign bankers, advisers and attorneys; and at least 36 U.S. taxpayers.
UBS, which isn’t one of the 11 banks now under scrutiny, avoided prosecution in 2009 by paying $780 million, admitting it fostered tax evasion and handing over details on 250 secret accounts. It later disclosed another 4,450 accounts.
UBS made 10.75 billion francs ($12.1 billion) in revenue in the U.S. in 2010, or 34 percent of the group’s total. Credit Suisse made 12.84 billion francs in revenue in the Americas in 2010, or 41 percent of the total. HSBC’s Swiss private bank and Julius Baer declined to disclose information on revenue from U.S. clients. A spokesman for HSBC in Geneva declined to comment on the settlement talks.
Credit Suisse gained 2.4 percent to 24.42 Swiss francs, at 3:09 p.m. in Zurich. Baer was unchanged at 34.70 francs. Basler Kantonalbank and Liechtensteinische Landesbank dropped 0.4 percent and 2.8 percent, respectively.
Urs Rohner, chairman of Credit Suisse, last month told newspaper NZZ am Sonntag that the bank has transferred statistical data sought by the U.S. Marc Dosch, a spokesman for the Zurich-based bank, declined to comment further.
Basler Kantonalbank (BSKP) spokesman Michael Buess said it also gave such data to the U.S.
Wegelin & Co. spokeswoman Albena Bjoerck said it will show “Swiss and U.S. authorities that the bank has not breached either Swiss or U.S. law.” The bank is cooperating with authorities “within the scope of Swiss law.”
After a U.S. indictment of two Julius Baer bankers this month, the bank said it “is one of a number of Swiss financial institutions supporting the ongoing tax negotiations between the U.S. and Switzerland” and is cooperating with the U.S. probe. Spokesman Martin Somogyi declined to comment further.
Youval Dichovski, Zurich-based head of internal audit at Bank Leumi Switzerland Ltd., said the bank is cooperating.
Bank Hapoalim Switzerland is complying with its legal and regulatory duties in cooperating with Swiss authorities, said Chief Executive Officer Michael Warszawski. He said the bank “has only a limited number of American clients whose holdings with the bank are very small.” The bank, he said, “is not aware of any violations of U.S. law by the bank or its employees.”
Cyrill Sele, a Vaduz, Liechtenstein-based spokesman for Liechtensteinische Landesbank AG (LLB), said it sent statistical data to the U.S. A man who answered the phone Oct. 20 at NZB said it is closing and has only a few employees.
Zuercher Kantonalbank spokesman Urs Ackermann said the bank was informed in September of the U.S. investigation. A spokesman for Mizrahi Bank had no immediate comment.
The UBS turnover of 4,450 names, in the face of Swiss laws barring most disclosures of client data, set a precedent for the current talks. The U.S. agreed to submit a request for specific accounts under a 1996 tax treaty and a follow-up agreement in 2003. Under that accord, Swiss bank secrecy doesn’t protect accounts if the owner engaged in “tax fraud or the like,” which is a narrower definition of tax evasion than U.S. law provides.
Turned Over Accounts
The Swiss directed UBS to turn over accounts to the Swiss Federal Tax Administration for review before handing them to the IRS. Negotiators are determining how to apply the 1996 tax treaty and one adopted in 2009 that still needs ratification by the U.S. Senate, the people said.
“Switzerland is continuing talks with the U.S. authorities on administrative assistance in cases of tax fraud and tax evasion,” said Norbert Baerlocher, spokesman for the Swiss embassy in Washington, in a statement. “Any exchange of client data can occur only within the scope of the current legal system, in accordance with the procedures provided for in the existing or the new double-taxation agreement with the USA.”
The Swiss agreed in March 2009 to meet international standards to avoid being blacklisted as a tax haven by the Organization for Economic Cooperation and Development. The London-based Tax Justice Network this month ranked Switzerland at the top of its financial secrecy index.
‘A Big Issue’
“This is a big issue for these banks,” said C. Evan Stewart, an attorney at Zuckerman Spaeder LLP in New York, who isn’t involved in the settlement talks.
“These are no longer small institutions catering to wealthy people in a small part of central Europe,” he said. “These are multinational institutions now that have a reach that’s all over the world. This has a huge impact on the banking system in Switzerland. Another issue is the sovereignty in Switzerland and whether that will be given deference by other governments.”
The IRS has said 30,000 U.S. taxpayers with offshore accounts avoided prosecution since 2009 by entering a limited amnesty program, paying back taxes and saying who helped them hide their accounts from authorities. Hundreds of taxpayers in the program have given information to prosecutors that have helped them build criminal cases against bankers and advisers.
“The DOJ and IRS are casting a wide net as they try to identify Americans guilty of offshore tax evasion,” said Aaron D. Schumacher, a Geneva-based wealth planning attorney, with Withers LLP.
“They obtained a lot of information about various Swiss banks from the participants in the voluntary disclosure programs and that has likely enabled the recent indictments we’ve seen,” he said. “More people than we saw previously have come to us looking to renounce their citizenship.”
Attorney Robert Katzberg, who represents clients in criminal tax cases, said U.S. taxpayers with Swiss accounts don’t understand that the IRS and Justice Department will get a trove of new data on secret accounts.
“There are thousands of Americans, who are the functional equivalent of residents of New Orleans on the eve of Hurricane Katrina, who have no idea that Katrina is about to happen,” said Katzberg, of Kaplan & Katzberg in New York.
To contact the reporters on this story: David Voreacos in Newark, New Jersey, at email@example.com; Klaus Wille in Zurich firstname.lastname@example.org; Giles Broom in Geneva at email@example.com
To contact the editors responsible for this story: Michael Hytha at firstname.lastname@example.org; Craig Stirling at email@example.com; Frank Connelly at firstname.lastname@example.org