The US Department of Justice announced on Friday that two more offshore banks, Bank Linth LLB AG (Bank Linth) and Bank Sparhafen Zurich AG (BSZ), have reached resolutions under the department’s Swiss Bank Program.
“With each agreement signed under the Swiss Bank Program, we are learning more and more about the schemes individuals are employing to hide their assets overseas,” said Acting Assistant Attorney General Caroline D. Ciraolo of the Department of Justice’s Tax Division. “At this point, the message should be clear. Those who use foreign jurisdictions to evade their US tax obligations will be held fully accountable and pay a heavy price for their conduct.”
The Swiss Bank Program, which was announced on August 29, 2013, provides a path for Swiss banks to resolve potential criminal liabilities in the United States. Swiss banks eligible to enter the program were required to advise the department by December 31, 2013, that they had reason to believe that they had committed tax-related criminal offenses in connection with undeclared US-related accounts. Banks already under criminal investigation related to their Swiss-banking activities and all individuals were expressly excluded from the program.
Under the program, banks are required to:
• Make a complete disclosure of their cross-border activities;
• Provide detailed information on an account-by-account basis for accounts in which US taxpayers have a direct or indirect interest;
• Cooperate in treaty requests for account information;
• Provide detailed information as to other banks that transferred funds into secret accounts or that accepted funds when secret accounts were closed;
• Agree to close accounts of accountholders who fail to come into compliance with US reporting obligations; and
• Pay appropriate penalties.
Swiss banks meeting all of the above requirements are eligible for a non-prosecution agreement.
According to the terms of the non-prosecution agreements signed today, each bank agrees to cooperate in any related criminal or civil proceedings, demonstrate its implementation of controls to stop misconduct involving undeclared US accounts and pay penalties in return for the department’s agreement not to prosecute these banks for tax-related criminal offences.
Bank Linth, one of the largest regional banks in Eastern Switzerland, was founded in 1848. It is headquartered in Uznach, Switzerland, which is approximately 35 miles southeast of Zurich. Bank Linth provided private banking and asset management services to US taxpayers through private bankers based in Switzerland. It opened, serviced and profited from accounts for US clients with the knowledge that many were likely not complying with their tax obligations.
Bank Linth’s cross-border banking business aided and assisted US clients in opening and maintaining undeclared accounts in Switzerland and concealing the assets and income they held in these accounts. Bank Linth provided this assistance to US clients in a variety of ways, including the following:
• Opening and maintaining accounts in the names of sham entities;
• Providing US taxpayers with numbered accounts that hid the taxpayers’ identities;
• Facilitating US taxpayers’ withdrawal of cash from undeclared accounts; and
• Agreeing to hold bank statements and other mail relating to accounts rather than sending them to US taxpayers in the United States.
On several occasions, Bank Linth opened accounts for US taxpayers through an external asset manager, and one of these accounts was opened in the name of a sham foundation. In that instance, Bank Linth knowingly accepted and included in account records forms provided by the directors of the sham foundation that falsely represented the ownership of the assets in the account for US federal income tax purposes.
In accordance with the terms of the Swiss Bank Program, Bank Linth described in detail the structure of its banking business, including its management and supervisory structure, and provided the names of management and legal and compliance officials. Bank Linth further provided detailed and specific information related to its illegal US cross-border business, including the bank’s misconduct, policies that contributed to that misconduct and the names of the relationship managers overseeing the bank’s US-related business. Bank Linth also obtained affidavits from bank employees regarding the bank’s conduct and related matters.
Since August 1, 2008, Bank Linth held 126 US-related accounts, with over $102 million in assets. Bank Linth will pay a penalty of $4.15 million.
BSZ was founded in 1850 and has its sole office in Zurich. BSZ knew that US persons had a duty under US law to report their income to the Internal Revenue Service (IRS) and to pay taxes on that income, including all income earned in accounts that BSZ maintained in Switzerland. Despite this knowledge, BSZ opened, maintained and serviced accounts for US persons that it knew or had reason to know were likely not declared to the IRS or the US Treasury, as required by US law.
After August 1, 2008, US persons opened 32 US-related accounts at BSZ, and only one of them provided a Form W-9 to BSZ upon opening an account. In most cases, the US persons who opened accounts at BSZ during this period had been required to close their accounts at other Swiss banks, and BSZ knew or had reason to know that most of these accounts were likely not declared to the IRS. Moreover, 22 of the US-related accounts opened during this period were funded by transfers from banks that were or are the targets of Justice Department criminal investigation.
Two relationship managers at BSZ were responsible for managing most of its US-related accounts in the period since August 1, 2008, and one of those managers directly reported to BSZ’s chief executive officer. BSZ relationship managers assisted US persons in executing waiver forms that directed the bank not to acquire US securities in their accounts. BSZ knew that the purpose and effect of these forms was to avoid disclosing the identities of the US persons to the IRS.
Until 2012, BSZ provided its US clients with an option for hold-mail agreements, even though it understood that providing these agreements upon request could allow US persons to keep evidence of their accounts outside of the United States in order to conceal assets and income from the IRS. One US client told his BSZ relationship manager by email that the hold-mail fee was “cheap insurance against having my dealings with you come to the attention of the government revenue authorities.”
BSZ also offered travel cash cards to its clients, including US persons. A client could instruct BSZ to load up to 10,000 Swiss francs, US dollars or euros from his or her BSZ bank account onto a travel cash card. The client could then use the card for purchases or remit unused balances back to the BSZ account. US persons’ use of these cards facilitated access to or use of undeclared funds on deposit at BSZ. One BSZ relationship manager sent a brochure about travel cash cards to a US client who did not wish to transfer money to the United States because of “surveillance” concerns.
In accordance with the terms of the Swiss Bank Program, BSZ described in detail the structure, operation and supervision of its US cross-border business, including the names of relevant individuals and entities. It also encouraged existing and prior holders of US-related accounts to disclose their accounts to the IRS through the Offshore Voluntary Disclosure Program.
Since August 1, 2008, BSZ held 91 US-related accounts, with over $25 million in assets. BSZ will pay a penalty of $1.81 million.
In accordance with the terms of the Swiss Bank Program, each bank mitigated its penalty by encouraging US accountholders to come into compliance with their US tax and disclosure obligations. While US accountholders at these banks who have not yet declared their accounts to the IRS may still be eligible to participate in the IRS Offshore Voluntary Disclosure Program, the price of such disclosure has increased.
Most US taxpayers who enter the IRS Offshore Voluntary Disclosure Program to resolve undeclared offshore accounts will pay a penalty equal to 27.5 percent of the high value of the accounts. On August 4, 2014, the IRS increased the penalty to 50 percent if, at the time the taxpayer initiated their disclosure, either a foreign financial institution at which the taxpayer had an account or a facilitator who helped the taxpayer establish or maintain an offshore arrangement had been publicly identified as being under investigation, the recipient of a John Doe summons or cooperating with a government investigation, including the execution of a deferred prosecution agreement or non-prosecution agreement. With Friday’s announcement of these non-prosecution agreements, noncompliant US accountholders at these banks must now pay that 50 percent penalty to the IRS if they wish to enter the IRS Offshore Voluntary Disclosure Program.
“With two more non-prosecution agreements with Bank Linth and Bank Sparhafen Zurich, the Swiss Bank Program continues to bring into compliance those US taxpayers that hid behind bank secrecy laws or held undeclared offshore accounts,” said Deputy Commissioner Douglas O’Donnell of the IRS Large Business and International Division. “The program provides Swiss banks a path to resolution. These additional agreements demonstrate that efforts by the IRS and DOJ are both effective and successful.”
“The success of the Swiss Bank Program and the assistance IRS-Criminal Investigation provides is clear,” said Chief Richard Weber of IRS-Criminal Investigation (CI). “The Swiss Bank Program is proving to be tremendously successful not only for the number of participating banks but for the multiplier effect. With the vast amount of information these banks are providing and the investigative skills of IRS-CI special agents, we now have clear roadmaps identifying accountholders and facilitators as well as the ability to track the movement of money to other accounts in other countries. For those who may still be trying to hide cash or assets offshore, your time is up.”