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From Birkenfeld to the Program: A Review of the Swiss-U.S. Tax Dispute by Walter H. Boss and Andrea Scherrer Reprinted from Tax Notes Int’l, September 23, 2013, p. 1203 Volume 71, Number 13 September 23, 2013 (C) Tax Analysts 2013. All rights reserved. Tax Analysts does not claim copyright in any public domain or third party content.

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Page 1: From Birkenfeld to the Program: A Review of the Swiss-U.S. Tax … · 2015. 7. 21. · From Birkenfeld to the Program: A Review of the Swiss-U.S. Tax Dispute by Walter H. Boss and

From Birkenfeld to the Program:A Review of the Swiss-U.S. TaxDispute

by Walter H. Boss and Andrea Scherrer

Reprinted from Tax Notes Int’l, September 23, 2013, p. 1203

Volume 71, Number 13 September 23, 2013

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TaxA

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From Birkenfeld to the Program:A Review of the Swiss-U.S. Tax Disputeby Walter H. Boss and Andrea Scherrer

The coming out of UBS banker Bradley Birkenfeldin 2008 is generally referred to as the starting

point of the Swiss-U.S. tax dispute. Since then the U.S.and Switzerland tried to find a global solution to thismatter. On August 29 Switzerland and the U.S. signeda joint statement regarding a program to end the taxdispute.1

This article provides an overview of the discussionsand actions taken in the legal entanglements of Swissbanks desiring to resolve their disputes with the U.S.authorities.

I. Background of the DisputeBirkenfeld’s confession led the U.S. to believe that

he was not the only UBS banker assisting U.S. tax-payers to evade taxes. This is why the U.S. asked UBSto hand over the data of approximately 20,000 U.S.taxpayers and asked Switzerland for assistance. OnAugust 19, 2009, Switzerland agreed to and concludeda settlement with the U.S. to provide the data of 4,450UBS clients. Further, UBS had to pay a penalty of$780 million in the framework of a deferred prosecu-tion agreement. Subsequently, the U.S. withdrew thelawsuit against UBS.

Based on the data transferred and numerous volun-tary disclosures by noncompliant taxpayers, the U.S.

gathered sufficient knowledge to initiate legal pro-cedures against other Swiss banks. Simultaneously, theU.S. submitted several requests for administrative assis-tance in tax matters to the Swiss Federal Tax Adminis-tration (FTA).

From 2012 onward, the focus of the U.S. extendedfrom client data to the liability of Swiss banks for hav-ing assisted U.S. taxpayers in tax evasion. The U.S.Department of Justice requested data from Swissbanks, especially regarding their employees and clientadvisers. Client data were not requested directly fromthe banks, because the DOJ accepts that Switzerlandwill hand over client data by way of an administrativeassistance procedure only. For almost five years theDOJ repeatedly voiced its discontent about a lack ofcooperation from the Swiss banks, which put the banksunder constant pressure to face U.S. legal proceedings.

However, since Swiss banks must comply with Swisslaw, notably the Data Protection Act,2 which does notpermit the direct transfer of data including bank em-ployees’ names, their hands were tied.3 In October2011 the Federal Council issued a decree based onwhich Switzerland and the U.S. entered into discus-sions to find a solution in accordance with current

1Swiss Federal Department of Finance, ‘‘Switzerland andUnited States sign joint statement to end tax dispute betweenSwiss banks and United States,’’ Aug. 30, 2013. Prior coverage:Tax Notes Int’l, Sept. 2, 2013, p. 862.

2Federal Act on Data Protection (SR 235.1) of June 19, 1992.3Dispatch concerning the Federal Act on measures for the

simplification of the settlement of the tax dispute between SwissBanks and the U.S. (‘‘Botschaft Lex USA’’) from the FederalCouncil to the Swiss Parliament of May 29, 2013, p. 4.

Walter H. Boss and Andrea Scherrer are with Poledna Boss Kurer AG in Zurich.

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Swiss law as well as the applicable income tax treaty.4A solution in the Swiss-U.S. tax dispute has beenfound only now.

In January 2012 the indictment of three employeesof Bank Wegelin for having assisted U.S. taxpayers intax evasion caused an éclat in the ongoing dispute.Bank Wegelin transferred its non-U.S. business to anewly formed subsidiary Notenstein Privatbank, whichwas immediately sold to Raiffeisen Group on January27, 2012. Bank Wegelin made a guilty plea to havingassisted U.S. taxpayers to evade tax, paid a fine of $74million, and was closed thereafter.

On April 4, 2012, the Federal Council issued a spe-cific authorization to those Swiss banks that were un-der investigation by the U.S. authorities, granting themexemption from article 271 of the Swiss Criminal Code(CC) and enabling them to transfer the requested data.This, however, was not sufficient to allow the banks tocomply with the U.S. request for data since the DataProtection Act was a further obstacle.5

In December 2012 Switzerland and the U.S. con-cluded an intergovernmental agreement concerning theForeign Account Tax Compliance Act,6 which will be-come effective in 2014. This was a further indicationfor the U.S. authorities that Switzerland is serious in itsefforts to cooperate with the U.S. authorities.

On May 29 the Federal Council presented a legisla-tive proposal for a solution of the Swiss-U.S. tax dis-pute designed to remove the legal obstacles in Swisslaw that prevent the Swiss banks from fully cooperatingwith the U.S. authorities. The so-called Lex USAwould have regulated the details for the cooperationbetween the Swiss banks and the U.S.7 Whereas theStates Council (Senate) agreed to the Lex USA, theNational Council dismissed it on June 19.8

‘‘Plan B’’ has now taken shape. On August 29Switzerland and the U.S. signed a joint statement toput an end to the tax dispute between the Swiss banksand the U.S., enabling the Swiss banks to come cleanregarding their past.

II. Legal Basis for the Data Transfer

A. A Failed Legislative ProposalLex USA was introduced by the Federal Council on

May 29 as a solution to the Swiss-U.S. tax dispute and

was supposed to enter into force on July 1.9 However,on June 19, the Swiss Parliament rejected the LexUSA.10

Lex USA would have allowed Swiss banks to re-solve their dispute with U.S. authorities by finding asolution for the past in a closing agreement and byeliminating the risk to be entangled in U.S. court pro-ceedings. Swiss banks would have cooperated by pro-viding the aforementioned bank data requested by theDOJ.

Client data, however, would have continued to beexcluded from the data transfer as they may only beexchanged on the basis of the administrative assistanceprocedure under article 26 of the Switzerland-U.S. in-come tax treaty.

Lex USA would also have enabled the banks todeliver data regarding their employees who organized,maintained, and supervised the U.S. client relationshipswithin the bank. Data on third parties would equallyhave been supplied to the extent these persons had abusiness relation with the U.S. taxpayers. This wouldhave affected trustees, asset managers, and lawyers.11

The draft Lex USA contained provisions accordingto which the banks would have been able to cooperatewith U.S. authorities.12 They are:

• The authorization for Swiss banks to give the U.S.authorities the relevant information necessary forthe conclusion of a non-prosecution or deferredprosecution agreement, such as the leaver lists aswell as information regarding the employees whoorganized, maintained, and supervised the U.S.client business within the bank and data of thirdparties to the extent they had a business relationwith the U.S. taxpayers.

• A provision regarding the widest possible protec-tion of bank employees affected by the data trans-fer.

Further, the draft included specific provisions to theeffect that neither client data nor account informationmay be transferred. The banks would, however, havebeen allowed to give the U.S. authorities informationneeded for submitting a request for administrative assis-tance under article 26 of the Switzerland-U.S. incometax treaty.13

There was no public information regarding how thecooperation between the U.S. authorities and the Swiss

4Convention between the United States of America and theSwiss Confederation with respect to taxes on income (Oct. 2,1996). See also Botschaft Lex USA, supra note 3, at p. 4.

5Botschaft Lex USA, supra note 3, at p. 5.6Abkommen zwischen der Schweiz und den Vereinigten

Staaten von Amerika über die Zusammenarbeit für eine erleich-terte Umsetzung von FATCA (‘‘Agreement on FATCA’’); BBl2013 3243.

7See supra note 3.8Official Bulletin No. 13.046.

9See Botschaft Lex USA, supra note 3, and Draft ‘‘Bundes-gesetz über Massnahmen zur Erleichterung der Bereinigung desSteuerstreits der Schweizer Banken mit den Vereinigten Staaten’’(‘‘Draft Lex USA’’).

10Official Bulletin No. 13.046.11See Botschaft Lex USA, supra note 3, at p. 2 and 4.12Draft Lex USA, supra note 9, at articles 1-3; Botschaft Lex

USA, supra note 3, at p. 6.13Draft Lex USA, supra note 9, at article 1, para. 3.

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banks would have looked in detail. There were rumorsthat the U.S. intended to have all Swiss banks — ap-proximately 300 — divided into four groups, depend-ing on the extent of their U.S. offshore business, if any.The expected penalties were not revealed at that time.The participation in the cooperation program wouldhave been optional. However, any Swiss bank that didnot participate would have been exposed to the risk ofbeing investigated and possibly indicted by the U.S.

On June 19 the Swiss Parliament rejected the LexUSA. Why exactly Parliament rejected the Lex USA ishard to tell. Many think the possibility of data beingtransferred on third parties was crucial for the Parlia-ment’s refusal, together with the fact that the frame-work of the penalties was not revealed. Parliamentmade it clear that it considered that it was up to theFederal Council to find a solution for the U.S. tax dis-pute.14

On the same day, the Swiss Parliament issued a‘‘parliamentary declaration,’’ stating it expected theFederal Council to make every effort possible to find away for the banks to cooperate with the DOJ on thebasis of current law. Hence Parliament acknowledgedthe need to swiftly find a solution, and it mandated theFederal Council to resolve the issue.15

B. ‘Plan B’ or Joint Statement

On July 3 the Federal Council announced the so-called Plan B.16

Plan B has now been enacted through the jointstatement, signed on August 29 by Swiss AmbassadorManuel Sager and U.S. Deputy Attorney GeneralJames Cole.17

The solution respects the Swiss legal system; it doesnot apply retroactively and it does not require emer-gency legislation. It will enable Swiss banks to settletheir past with the U.S. government.18 The U.S. willreceive information that allows it to ‘‘follow the moneyto other Swiss banks and to banks located in othercountries.’’19

The solution of the tax dispute contains three ele-ments:

• a joint statement by the Swiss and the U.S.governments;

• a unilateral program drafted by the DOJ in whichSwiss banks may participate on a voluntary basis(the program); and

• unilateral Swiss parameters in the form of amodel authorization for Swiss banks who wish toparticipate in the U.S. program (the Swiss modelorder).20

The Swiss Bankers Association stated that it is re-lieved a solution has eventually been found although italso said that the penalties are at the very upper end ofwhat may be bearable.21

The DOJ expressed its appreciation for Switzer-land’s assistance in and support of the program. Theprogram will give the U.S. more information regardingrecalcitrant U.S. taxpayers who are still not declaringtheir assets held in foreign accounts. However, it willalso encourage Swiss banks to eventually come for-ward.22

1. Joint Statement

The joint statement basically reflects the intent ofthe two governments to end the Swiss-U.S. tax dispute.The DOJ will make available a program for Swissbanks that are not yet under investigation by theUnited States. Switzerland will inform the Swiss banksof the possibility to voluntarily participate in the U.S.program and will encourage them to do so. Further,Switzerland agreed to handle in a speedy manner U.S.requests for administrative assistance based on thetreaty in force today.23

The joint statement mentions that in considerationof providing a high level of personal data and privacyprotection for all individuals as provided in the laws ofboth states, Switzerland and the U.S. agreed that anypersonal data provided should generally be used onlyfor purposes of law enforcement in the U.S.24

2. Program for Swiss Banks

The program is available to any Swiss bank otherthan those banks already under criminal investigationby the DOJ. Under the program, Swiss banks aredivided into four categories:

• Category 1 includes the banks that are alreadyunder U.S. criminal investigation, such as Credit

14Official Bulletin No. 13.046.15Official Bulletin No. 13.054.16Swiss Federal Council, ‘‘Tax dispute between Swiss banks

and United States: Federal Council sets out parameters for coop-eration,’’ July 3, 2013.

17See supra note 1.18Id.19DOJ, ‘‘United States and Switzerland Issue Joint Statement

Regarding Tax Evasion Investigations,’’ Aug. 29, 2013.

20Swiss Federal Department of Finance, ‘‘Basic Information— Signing of joint statement on tax dispute between Switzerlandand United States,’’ Aug. 30, 2013.

21Swiss Bankers Association, ‘‘Statement from the SwissBankers Association regarding the publication of the US pro-gramme,’’ Aug. 30, 2013.

22See supra note 20.23Joint Statement between the U.S. Department of Justice

and the Swiss Federal Department of Finance of August 29,2013.

24Id.

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Suisse, Zürcher Kantonalbank, Basler Kantonal-bank, Pictet, Bank Julius Bär, HSBC, and BankFrey.

• Category 2 includes banks that have good reasonsto believe they have violated U.S. tax law andtherefore may apply for a non-prosecution agree-ment by the U.S. authorities until December 31,2013.

• Category 3 includes banks that have not violatedU.S. tax law. They may apply for a non-target let-ter from the DOJ between July 1, 2014 and Octo-ber 31, 2014.

• Category 4 contains banks with local businessonly. They too may apply for a non-target letterwithin the same deadline as Category 3 banks.25

Category 2 banks must fully cooperate with the U.S.authorities and disclose information on their cross-border business for U.S. accounts such as how the busi-ness was structured, operated, and supervised. Theymust reveal the names and functions of the individualswho structured, operated, or supervised that businessand indicate how they attracted and serviced the ac-count holders. Further, they must provide informationregarding the number of U.S. accounts and the amountof funds held in these accounts from August 1, 2008,onward. Also, they must present so-called leaver lists(see below). The information must be verified by anindependent examiner (independent attorney or audi-tor).

Besides the disclosure of the aforementioned infor-mation, Category 2 banks will have to pay a penalty.For any accounts that existed on August 1, 2008, thepenalty is 20 percent of the maximum aggregate dollarvalue of all such accounts; the penalty is 30 percent ofthe maximum aggregate dollar value of accountsopened between August 1, 2008, and February 28,2009; and the penalty is 50 percent of the maximumaggregate dollar value of accounts opened after Febru-ary 28, 2009.26

Banks in Category 3 may request a non-target letterbetween July 1, 2014, and October 31, 2014. Thebanks must verify the percentage of assets under man-agement that concern the U.S. and must have a compli-ance program for those accounts. The information mustbe verified by an independent examiner (independentattorney or auditor). If a Category 3 bank discoversthat it should have applied for a non-prosecution agree-ment because it does not meet the requirements forCategory 3, a change to Category 2 will still be pos-sible. Category 3 banks will not be subject to a penaltypayment.27

Banks in Category 4 are banks considered to belocal banks under the FATCA agreement (see below),that is, banks whose account holders are 98 percent ormore Swiss or European Economic Area persons.These banks are deemed compliant and may request anon-target letter. They will not have to pay a penalty.28

3. The Swiss Model Order

The purpose of the Swiss model order of July 3,2013,29 is to enable Swiss banks to participate in theprogram for non-prosecution agreements or non-targetletters provided by the DOJ. Switzerland will grantauthorization for one year to Swiss banks according toarticle 271(1) of the Swiss CC.30

Article 271(1) of the CC reads as follows:

Unlawful activities on behalf of a foreign state:Any person who carries out activities on behalfof a foreign state on Swiss territory without law-ful authority, where such activities are the respon-sibility of a public authority or public official,any person who carries out such activities for aforeign party or organization, any person whoencourages such activities, is liable to a custodialsentence not exceeding three years or to a mon-etary penalty, or in serious cases to a custodialsentence of not less than one year.

Hence, if a bank has a specific authorization, thetransfer of data — based on this authorization — isnot considered a criminal act.

Banks with such a specific authorization may trans-fer to U.S. authorities data regarding the client struc-ture, employees involved, and third parties as well asso-called leaver lists. The transfer of client data, how-ever, is not covered by the specific authorization underarticle 271(1) of the CC. As noted above, client datamay only be transferred based on a request in an ad-ministrative assistance procedure. Further, the banksmust consider the personal rights of bank employees,lawyers, trustees, and other third parties concerned.Such third parties must be informed by the bank beforethe transfer of the data according to the provisions ofthe Swiss Data Protection Act.31

The first specific authorizations had already beengranted before the signing of the joint statement,among others to Credit Suisse and the Zürcher Kanto-nalbank. From then onward, they were allowed tosubmit the requested leaver lists to the DOJ. Category1 banks are in the process of preparing the respectiveleaver lists and sending them to each other for ap-proval.

25See supra note 1.26Id.27Id.

28Id.29Federal Department of Finance, Guidance Note on the

Swiss Model Order of July 3, 2013.30Swiss CC (SR 311.0) of Dec. 21, 1937.31See supra notes 16 and 29.

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Plan B and the possibility to finally be able to trans-fer the data requested by the DOJ was welcomed bythe Swiss banks. For a long time it was unclear whatinformation should be included in the leaver lists.Eventually, the program provided some details. Banksin Category 2 must provide the DOJ with informationconcerning the transfer of funds into and out of theaccounts at issue from August 1, 2008, onward, includ-ing whether funds were deposited or withdrawn incash, whether funds were transferred through an inter-mediary, as well as information regarding the identifi-cation of a financial institution that transferred fundsinto or received funds from the account in Switzerlandor abroad.32

However, there are still numerous open questions. Itis, for example, not clear to what extent the informa-tion must be provided nor is the form of the leaver listsdefined. Ultimately the leaver list may well be more ofa cash flow list indicating payments made by U.S. cli-ents to another bank rather than mere transfers ofportfolios. Even payments for economic reasons suchas hotel invoices and so forth may be found on a leaverlist, although they have nothing to do with the closingof an account. Every bank preparing a leaver list hasdecided on its own conditions and its own form. Somebanks limit the data to be transferred to accounts thatheld a specific amount of money, whereas data on ac-counts with a lesser amount will not be supplied. It isunclear whether the U.S. is fully aware that the infor-mation they will receive will not be homogenous;whether they will accept this remains to be seen.

The recipient banks indicated on the leaver lists mayin principle object to being named on the leaver listand eventually have the matter decided by a court. Onemay assume though that the recipient banks will bevery reluctant to do so out of concern that in the eyesof the DOJ they may appear to be unwilling to cooper-ate. Third parties such as trustees, asset managers, andlawyers may also object to the transfer of informationconcerning them on the basis of the Data ProtectionAct. Such objections may delay or in some instancesprevent the delivery of data and irritate the U.S. au-thorities. One cannot exclude further investigations andpossible indictments of Swiss banks. Allegedly, the U.S.will shift its focus from Switzerland to other placeswhere undeclared assets of U.S. taxpayers are believedto be held, such as India, Luxembourg, Israel, and theCaribbean Islands.

Note that the Swiss model order also includes provi-sions regarding maximum protection for former andcurrent employees of the Swiss banks. Before transfer-ring any data concerning the employees, an agreementmust be concluded with any employee associations.33

III. Data to Be TransferredAs noted above both under the rejected Lex USA as

well as the joint statement and the corresponding pro-gram, only bank data, not client data, may be trans-ferred. According to the treaty, the transfer of clientdata still requires a request for administrative assis-tance.34

A. Bank Data

The discussions between Switzerland and the U.S.were held between the State Secretariat for Interna-tional Financial Matters and the DOJ. The DOJ re-quested statistical data on client behavior and flows offunds (account closures and transfers). It also asked forthe leaver lists including information that allows themto follow the flows of funds such as information on thenumber of clients who left the bank (leavers), theamounts withdrawn, and to what other Swiss or for-eign bank the money was transferred. The DOJ furtherrequested data of bank employees and third partieswho were involved in business relationships with U.S.persons.35

As described above, the handover of such leaver listsand the information regarding employees and thirdparties is conditional on a specific authorization underarticle 271 of the CC.36

From the information gathered the DOJ expects toget a clear picture of the Swiss private banking busi-ness and to understand how Swiss banks were runningtheir U.S. wealth management business for U.S. off-shore clients. The refusal or inability to deliver therequested data would lead to a denial of a non-prosecution or deferred prosecution agreement for theSwiss bank concerned. Hence, those banks would facefurther exposure to U.S. criminal investigation.37

B. Bank Client Data

As noted, no bank client data will be transferred onthe basis of the joint statement and the program; theywill continue to be governed by the administrativeassistance procedure under article 26 of the treaty.38

Under the treaty in force the exchange of informa-tion is permitted only in cases of ‘‘tax fraud and thelike.’’39 On September 23, 2009, Switzerland and theU.S. signed a protocol to the existing treaty of 1996.40

32See supra note 23.33See supra note 29.

34See sections II.A and II.B of this article; see article 26 of theSwitzerland-U.S. income tax treaty.

35See as a summary Botschaft Lex USA, supra note 3, at p. 2.36Id. at p. 4.37Id. at p. 5.38See Section II.B of this article.39Article 26 of the 1996 Switzerland-U.S. income tax treaty.40Protocol amending the Convention between the United

States of America and the Swiss Confederation for the avoidanceof double taxation with respect to taxes on income, October 2,

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The amending protocol extends the scope of adminis-trative assistance in tax matters in that it allows for theexchange of information not only in cases of ‘‘taxfraud or the like,’’ but also in cases of mere tax eva-sion. The protocol will enter into force retroactivelyfrom the date of signing, that is, September 23, 2009.41

Whether the retroactive effect of the protocol is consis-tent with the principle of the rule of law set forth inthe Swiss constitution is disputed.42 The Swiss Parlia-ment approved the protocol on June 18, 2010; how-ever, it awaits U.S. Senate approval.43

On March 5, 2009, the Federal AdministrativeCourt ruled that group requests by the IRS are permit-ted under the existing treaty if they outline a specificpattern of behavior adopted by numerous U.S. personswithout naming these persons. On April 5, 2012, theSwiss Federal Administrative Court rejected the trans-fer of client data of Credit Suisse to the U.S. by theFTA because the administrative assistance request wasnot sufficiently substantiated. The court allowed thetransfer of client data on March 13, 2013, based on anamended request for exchange of information. On July5, 2013, the Federal Supreme Court confirmed the de-cision of the Federal Administrative Court and ruledthat group requests based on specific fact patterns aregenerally allowed.44

On February 1 Switzerland implemented a new lawregarding the procedure of administrative assistance,the Federal Act on International Administrative Assis-tance in Tax Matters (TAAA). The TAAA also coversgroup requests.45 On August 14 the Federal Councilinitiated a partial revision of the TAAA. It provides fordeferred notification of persons who are subject to ad-ministrative assistance requests in some cases. Further,the revision will clarify the procedure for group re-quests and adjust the treatment of requests based onstolen data.46

Lastly, the U.S. will be provided with client databased on FATCA, a U.S. law that requires foreign fi-nancial institutions to enter into an agreement with theU.S. and to disclose to it information on the accountsof U.S. clients or to levy a considerable tax. Swiss

financial institutions will deliver information on theaccounts held by U.S. persons to the IRS, withoutbeing obliged to disclose the name of recalcitrant U.S.clients (that is, clients who do not consent to the trans-fer of their data). However, the Swiss financial institu-tions will be obliged to inform the U.S. of the numberand the aggregate amount of funds held by recalcitrantU.S. clients.47 Such recalcitrant taxpayers may then bedetected through a group request based on the adminis-trative assistance procedure so that their data will bemade available to the IRS.

IV. ConclusionIn summary, loopholes have been closed and a tight

network of legal provisions has been implementedaccording to which the U.S. will receive the requestedSwiss bank and client data. U.S. tax evaders will nolonger be able to escape the U.S. authorities.48

Banks having been granted a specific authorizationby the Federal Council to transfer bank data to theU.S. are in the process of preparing leaver lists andsending them to each other for information.49 Onemust assume that the information in the leaver lists willsatisfy the DOJ and that the banks will be able to settletheir disputes under the terms of the program, albeit ata significant cost.

The U.S. authorities will be able to gather sufficientmaterial from the data provided by the banks under theprogram as well as under FATCA so that they will bein a position to draft substantiated new group requestsin administrative assistance procedures regarding U.S.clients based on the current treaty.

As long as the new protocol of September 23, 2009,however, is not ratified by the U.S. Senate, administra-tive assistance will only be possible on the basis of thecurrent wording of article 26 of the 1996 treaty for‘‘tax fraud and the like,’’ but not for a mere tax eva-sion. The U.S. Senate would be well advised to takethis matter at hand as soon as possible. Once theprotocol enters into force, the U.S. authorities will beable to obtain the personal data of all U.S. non-tax-compliant clients from the FTA based on grouprequests, be it based on the leaver lists of the Swissbanks or the aggregate reports on recalcitrant U.S.clients under FATCA, even in cases of simple taxoffenses.50 ◆

1996, between the Swiss Confederation and the United States ofAmerica, signed on September 23, 2009 (protocol); BBl 2010247.

41Article 5(2)(b)(i) of the protocol.42Constitution of the Swiss Confederation (SR 101) of Apr.

18, 1999, article 5.43BBl 2010 4359.44Decisions of the Swiss Federal Administrative Court of

Mar. 5, 2009 (A-7342/2008 and A-7426/2008), Apr. 5, 2012 (A-737/2012), Mar. 13, 2013 (A-6011/2012), and July 5, 2013(2C_269/2013).

45Article 6(2a) of the TAAA.46Swiss Federal Council, ‘‘Tax Administrative Assistance Act:

Federal Council initiates shortened consultation,’’ Aug. 14, 2013.

47Agreement on FATCA; Dispatch concerning the approvalof the agreement between Switzerland and the U.S. on the coop-eration for the facilitated implementation of FATCA and Draftof the Federal Act on the implementation of the agreement, BBl2013 3181.

48Walter Boss, ‘‘US-Steuerstreit — Keine Schlupflöcher mehrfür US-Steuersünder,’’ NZZ, Aug. 10, 2013.

49See Section II.B of this article.50See supra note 48.

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