Following the Swiss parliament’s rejection of a deal to solve the
United States tax evasion dispute, there are grave doubts in both
Switzerland and the US that serious damage to the Swiss financial system can
On Wednesday the House of Representatives finally threw out plans to
allow banks to pass over confidential data to the US. The biggest fear is
that the US Department of Justice (DoJ) will renew the type of prosecutions
that sparked the demise of Wegelin bank earlier this year.
“It is very likely that [the DoJ] perceived the Wegelin indictment as a shot
across the bows of the larger more influential Swiss banks, and if that shot
is not heeded, they very well may see no alternative but to turn the heat up
on more economically important banks,” Beckett Cantley, a tax law expert at
the John Marshall Law School in Atlanta, told swissinfo.ch.
“The alternative would be to look like they don't mean what they say to the
rest of the offshore banking world. The DoJ is seeking not just to catch the
existing crop of tax evaders, but also to permanently deter new tax evaders
and their enabling bankers on a worldwide basis.”
Switzerland’s lead negotiator, Michael Ambühl, who is stepping down from his
post in August, already painted a bleak picture of life without a US
agreement during an address back in February.
“Whether we like it or not, the US has the ability to destabilize the entire
Swiss financial centre by taking measures against Swiss banks,” he said.
It is believed that the DoJ already has some 14 other Swiss or Swiss-based
banks in its legal cross hairs, including Credit Suisse, Pictet and several
"I expect to see another Swiss bank indicted in the near future," Miami tax
lawyer Teig Lawrence told swissinfo.ch. "It's just a question of which one
will have to bite the bullet and how big a gun the US wants to fire."
By rejecting the hastily presented “Lex USA” tax deal, parliament has now
thrown the ball back into the government’s court to find an alternative
solution that respects the laws of both Switzerland and the US.
This will be no easy task if the results of years of intense negotiations
between the two countries are anything to go by. Previous talks ultimately
proved a “failure”, according to former Swiss diplomat Christian Blickenstorfer, who served both in the Swiss embassy in the US and as
ambassador to Germany before retiring.
“Our diplomacy failed because for many years Switzerland had ignored
persistent US pressure to give them information on US citizens who had
evaded paying taxes,” he told swissinfo.ch. “There were signs on the horizon
– this [deadlock] did not materialise from one day to the other.”
Given the current impasse between the Swiss government and parliament,
Blickenstorfer does not see much “light at the end of the tunnel” in solving
the US dispute.
It appears unlikely that the US would accept more years of negotiations to
find another solution, while the Swiss government is expected to face legal
challenges from bank employees and the Swiss data protection commissioner if
it unilaterally allows banks to ignore secrecy laws and hand over
information to the US.
In 2010, the Federal Administrative Court ruled the handover of UBS client
data to the US the previous year as illegal. A later and larger data
transfer was only allowed after winning parliamentary approval.
The Senate has
approved a tax compliance treaty between Switzerland and the
United States that will come into effect in January and applies
to future tax-related dealings between the countries. The House
of Representatives will discuss the accord later this year.
Thursday’s decision – 34 against three with two abstentions -
came a day after parliament rejected a law which would have
enabled Swiss banks suspected of having aided US tax evation in
the past seek a legal settlement.
Under the Foreign Account Tax Compliance Act (FATCA), the US
authorities will, in the future, get banking data of all
American citizens (and other people subject to US tax law) who
hold assets in Swiss banks.
The law is to come into force at the beginning of 2014.
Under FATCA, the Swiss government opted for a system of
cooperation with the US which stops short of an automatic
exchange of information, but allows Washington to request
information on non-compliant individuals.
Local Swiss banks, pension funds and social security schemes are
Financial institutions refusing to provide the data risk being
excluded from the US financial market.
Supporters and opponents criticised the forceful imposition of
the treaty. Centre-right Christian Democrat senator Konrad
Graber described it as a “take it or leave it situation.” Others
said they had to “bite the bullet.”
Opponents on the left called on the Swiss government to opt for
cooperation based on an automatic exchange of information.
Finance Minister Eveline Widmer-Schlumpf pointed out that
Switzerland for the first time will have to take over
legislation from another state – infringing Switzerland’s
She said the law applied to countries around the world.
But this time around, parliament appears determined not to cave in to
perceived US bullying – a stance that has some sympathy from Beckett Cantley.
“The use of US power to undermine the sovereignty and laws of another
country - especially an ally - is a dangerous precedent,” he told
swissinfo.ch. “It seems to me that the US could have located undeclared
offshore bank accounts through any number of less offensive means.”
“The US has extensive capabilities when it comes to tracking the movement of
dollars through the world, especially those that move in and out of the US
But for former Swiss ambassador Blickenstorfer, there is no room for
sentiment in the cut and thrust world of international diplomacy. Larger
countries have always thrown their weight around with less powerful
counterparts, he said.
“My experience of negotiating with Americans is that they are tough but
fair,” he told swissinfo.ch. “Switzerland normally has no reason to have a
complex about its small size - it is not just about square metres or
“The smaller country usually emphasises that it is also of interest to its
larger partner, such as job creation or investments in that country. But in
this particular case there is not much we can argue to balance the
Teig Lawrence is convinced that US undeclared money could
still be stowed away in offshore bank accounts - including Switzerland
- despite some 40,000 people owning up to the US tax authorities during
The majority of people who have employed his services to come clean have
been those with smaller sized assets rather than multiple million dollar
"Those people with greater resources generally feel that they have a greater
ability to weather the storm," Lawrence told swissinfo.ch. "They are more
likely to adopt a wait and see approach."