Friday, February 26, 2010
It has recently emerged that the Swiss Federal Council is to put the Administrative Assistance Agreement between Switzerland and the US, dated August 19, 2009, to the Swiss parliament for formal approval. The Federal Department of Justice and Police has therefore been instructed to prepare the corresponding Federal Council Message.
The Federal Council’s decision will allow Switzerland to fulfill its obligations under international law, and bring a final resolution to its legal and sovereignty dispute with the US.
According to the Federal Council, this process means that in any future appeals, the Court will then no longer be able to regard the UBS Agreement as merely a mutual agreement. Instead, it will stand as a treaty of the same status as the older and more general bilateral double taxation convention. Indeed, according to the general rules of interpretation, it would also take precedence over the latter. As a result, Switzerland will be in a position to provide treaty assistance not only in cases of tax fraud, but also in cases of continued and serious tax evasion.
According to the statement by the Swiss Federal Administration: “A number of formal amendments must be made to remedy the shortcomings in the Agreement that were established by the Federal Administrative Court. In addition, a further amendment - to be made following consultations with the Chairman of the responsible Committees - will allow the Agreement to be applied provisionally as soon as an amending protocol is signed.”
It continues: “This authority is granted to the Federal Council under the Federal Government and Administration Act in order to safeguard important Swiss interests in cases of particular urgency. The amending protocol is expected to be signed in March. The Federal Council will then submit its message on the UBS Agreement and the amending protocol to Parliament. In the view of the Federal Council, these treaty texts do not require an optional referendum, since the UBS Agreement concerns only one request for information and is limited in duration. Furthermore, unlike the revised bilateral double taxation convention, which is subject to an optional referendum, it does not govern future treaty assistance arrangements with the USA in the general and abstract sense. Rather, it resolves the legal and sovereignty dispute with the USA in a specific case.”
The Federal Administration has also made known that the Swiss Federal Tax Administration (SFTA) will immediately commence final decisions in cases of tax fraud, as well as negative final decisions in cases in which the conditions for granting treaty assistance are not satisfied. It will not, however, issue final decisions on the other cases. Furthermore, it will not transfer any data to the US Internal Revenue Service (IRS) on the basis of final decisions that have become legally enforceable, unless the person concerned has given their express consent. Once the amending protocol has been signed, the SFTA will also commence final decisions in cases of continued and serious tax evasion.
According to the Administration, by handling matters in this way, Switzerland will be able to process the US request for information by the end of August 2010 deadline, as set in the agreement. It notes however, that the SFTA will not pass any data on to the IRS until the UBS Agreement has been approved by Parliament. The only exceptions to this rule are those cases in which the person concerned has given their express consent to the data transfer, or has reported themselves to the IRS under the latter's voluntary disclosure program.