September 7 2000 Switzerland under Scrutiny from International Financial Sector Secretan Troyanov | Private Client & Offshore Services - Switzerland Private Client & Offshore Services Financial Stability Non-Cooperative Countries or Territories Low or No Taxation Regimes Tax Information Sharing In light of the recent trend towards globalization, the United States and the European Union, as well as many multi-national bodies(1), have become more aware of the need to improve regulation of the international financial markets. To this effect, various initiatives have been introduced regarding, for example, international capital flow, risks of bank default and banking stability, anti-money laundering and corruption measures, and increased exchange of personal and tax-related information between fiscal and supervisory authorities. Many international organizations and countries have recently initiated or backed surveys, reports and inquiries intended to classify the different international financial centres and so-called 'tax havens' in an attempt to achieve these objectives. This update reviews the reports issued since last year, in order to illustrate perceptions of Switzerland as an international financial centre from an international regulatory point of view. Three international organizations recently published reports on different financial marketplaces, including Switzerland. The reports emphasize different criteria, such as financial stability, existing anti-fraud and anti-money laundering measures, and fiscal evasion measures. Switzerland has made considerable efforts during the last 10 years to maintain and improve its reputation as one of the premier international financial centres, introducing and enforcing modern legislation and regulation in many of the areas that are dealt with by the surveys, reports and initiatives. Financial StabilityThe first such report was issued by the Financial Stability Forum (FSF) in April 2000. The FSF was created by the G-7 (Group of Seven) to inform itself on the issue of global financial stability in the various international financial centres, with emphasis on adherence to international standards of soundness and transparency in respect of international capital flows, bank stability and risks of default. In this classification, the FSF compared and ranked 42 offshore financial centres (OFCs) with perceived significant offshore activities, focusing on their financial instability risks, and taking into consideration their supervisory authorities, laws and regulatory framework in banking, securities and insurance matters. OFCs were ranked according to their supervisory excellence and the degree to which they cooperated in international financial capital flows, thereby indicating the extent of their adherence to international 'standards' of financial fitness and transparency. While the report was not intended to condemn offshore activities as a whole, it does point out the dangers and risks that inadequate financial supervision or laws and regulations and their enforcement in OFCs may create for global financial stability. The report establishes three categories of countries and jurisdictions, which are as follows: Group I. These OFCs have efficient and satisfactory financial laws, regulatory frameworks and supervisory systems. Switzerland is designated as one of the OFCs in this group. The other OFCs are Luxembourg, Ireland (Dublin International Financial Services Centre), Jersey, Guernsey, Isle of Man, Hong Kong and Singapore. Group II. These OFCs also have financial laws, regulatory frameworks and supervisory systems relative to their international financial activities, but the FSF is of the opinion that they would most likely improve the most as a result of the FSF survey. The OFCs in this group are Andorra, Gibraltar, Malta, Monaco, Bermuda, Barbados, Bahrain, Macao and Malaysia (Labuan). Group III. These OFCs have in many cases financial laws, regulatory frameworks and supervisory systems relative to their international financial stature. However, the FSF is of the opinion that they present the greatest risks to global financial stability based on the size of their banking, securities and/or insurance activities in the international sphere. These OFCs could benefit from the FSF assessment by showing their commitment to improve their standards of financial supervision and cooperation with supervisory authorities in other jurisdictions. The FSF felt that by publication of the report these OFCs could undertake to improve the quality of their financial regulatory institutions and legal frameworks, whether in cooperation with, for example, the IMF (International Monetary Fund) or otherwise. The Group III OFCs are Cyprus, Liechtenstein, Anguilla, Antigua, Aruba, Bahamas, Barbuda, Belize, British Virgin Islands, Cayman Islands, Netherlands Antilles, St Christopher and Nevis, St Lucia, St Vincent & the Grenadines, Turks & Caicos, Costa Rica, Panama, Lebanon, Mauritius, Cook Islands, Marshall Islands, Nauru, Niue, Samoa and Vanuatu.The FSF report thus falls into line as part of the strategy of the G-7 and OECD (Organization for Economic Cooperation and Development) to create multilaterally or bilaterally, or in default of same to impose by threat of sanction, common international standards in all OFC financial affairs in respect of financial supervision, legal framework, international cooperation between supervisory authorities and information sharing with respect to international capital flows. Therefore, the FSF report is to be viewed in the context of the OECD and Financial Action Task Force (FATF) reports, which likewise have focused on tax havens.Non-Cooperative Countries or Territories A second report was published on June 22 2000 by the Financial Action Task Force (FATF). This identifies 15 different so-called 'Non-Cooperative Countries or Territories', which lack effective anti-money laundering legislation and regulatory frameworks according to FATF guidelines. The purpose of the report was to identify these jurisdictional insufficiencies, which undermine effective international anti-money laundering efforts. Switzerland is not mentioned, due to its 10-year effort to combat money laundering through relevant criminal legislation and, since 1997, through its new anti-money laundering law. This law is considered to be one of the world's most efficient anti-money laundering legal and regulatory regimes, and is often cited as a model. The 15 jurisdictions named in the report were Liechtenstein, Bahamas, Cayman Islands, Dominica, St Christopher and Nevis, St Vincent & the Grenadines, Panama, Russian Federation, Israel, Lebanon, Cook Islands, Marshall Islands, Nauru, Niue and Philippines. The FATF report has been made available to other multi-national bodies, such as the G-7, OECD, IMF and World Bank, so that they can study its recommendations in order to determine what actions should be taken to ensure that the jurisdictions listed implement effective anti-money laundering measures. In addition, the FATF members themselves are invited to take appropriate counter-measures to ensure that their own anti-money laundering legal and regulatory frameworks are not further undermined. These counter-measures may include the following: requiring FATF-member financial institutions to adopt appropriate client identification procedures in respect of financial transactions with a non-cooperative country or territory; increasing reporting requirements on FATF-member financial institutions in respect of financial transactions with a non-cooperative country or territory; restricting or prohibiting financial transactions made by FATF-member financial institutions with a non-cooperative country or territory; and restricting or preventing correspondent facilities provided by FATF-member financial institutions to their correspondents located in a non-cooperative country or territory. Low or No Taxation RegimesA third report was issued on June 26 2000 by the OECD. It establishes a blacklist of 35 tax-haven jurisdictions which, according to the OECD, facilitate fiscal fraud and evasion because of their lack of cooperation and information sharing. The OECD report followed the 1998 OECD Report on Harmful Tax Competition, which listed 47 tax havens that had either low or no taxation. The other condition for listing was the existence of at least one of the following criteria: legal or regulatory framework prohibits tax information exchanges with the tax authorities of other tax jurisdictions with respect to a taxpayer of that low or no taxation tax haven; lack of transparency in respect of the low or no taxation tax haven's laws and regulations; lack of 'substantial' economic activity by a taxpayer benefiting from the tax haven's low or no taxation regime.Prior to publication of the blacklist, six jurisdictions - Cyprus, Malta, San Marino, Bermuda, Cayman Islands and Mauritius - agreed to bring their respective legal and regulatory frameworks into line with OECD standards with respect to information exchange. The respective jurisdictions must adopt these legislative revisions by December 2005 at the latest. Six other jurisdictions were not named on the blacklist, since the OECD believed that they do not meet OECD tax-haven criteria. These are Costa Rica, Jamaica, Dubai, Brunei, Macao and Tuvalu. The OECD report points out that the 35 blacklist jurisdictions are potentially dangerous for international fiscal exchanges and stability in respect of the tax bases of OECD members. The real objective of the OECD is thus to equalize fiscal regulation in the different jurisdictions to create a 'level tax playing field' according to OECD norms. This will permit real cooperation between the tax authorities of the various jurisdictions, rather than harmful tax competition, which, again according to the OECD report, only favours tax havens to the detriment of OECD members. The real intent behind the OECD initiative is therefore simply to eliminate what the OECD calls 'preferential' taxes in different jurisdictions. The 35 jurisdictions are: Andorra, Gibraltar, Guernsey (with Alderney and Sark), Isle of Man, Jersey, Liechtenstein, Monaco, Anguilla, Antigua, Aruba, Bahamas, Barbados, Belize, British Virgin Islands, Dominica, Grenada, Montserrat, Netherlands Antilles, Panama, St Christopher and Nevis, St Lucia, St Vincent & the Grenadines, Turks & Caicos, US Virgin Islands, Bahrain, Liberia, Seychelles, Cook Islands, Marshall Islands, Nauru, Niue, Tonga, Vanuatu and Western Samoa. Switzerland is not mentioned in the OECD report because it is not considered a tax haven under the OECD criteria. It is nonetheless interesting to point out that Switzerland, a member of the OECD, abstained from the vote that approved the report, on the ground that the criteria for defining tax havens are wrong. In addition to the OECD blacklist report on tax havens, the OECD Committee on Fiscal Affairs approved a Report Improving Access to Bank Information for Tax Purposes earlier this year. The report was unanimously endorsed by all OECD members, including Switzerland. Recommendations of the report include: elimination of anonymous bank accounts accompanied by bank client identification procedures; voluntary - even unilateral - tax treaty information exchange between treaty partners; and review of banking and/or administrative legislation and regulatory regimes which restrict or prohibit tax information exchanges, whether in criminal or civil contexts.Switzerland was represented by the Swiss federal Finance Department on this OECD report. Swiss authorities were pleased with the language of the final report as issued and emphasized that present Swiss law in the respective areas dealt with by the report complies with the OECD recommendations. Further, Swiss law already provides for identification of bank customers and Swiss banking secrecy is not affected by the OECD report: indeed, Swiss bank secrecy for banking clients is not negotiable. Finally, the defining principles of Swiss law shall be the guidelines with respect to any further discussions on the matter. Switzerland already provides mutual assistance in criminal matters to foreign requesting states where the crime alleged by the foreign state is also a crime under Swiss law. As such, Switzerland even now provides de facto unilateral mutual assistance to requesting states in criminal cases that involve fiscal matters defined as tax fraud under Swiss law. Tax Information SharingSwitzerland cannot afford isolation internationally, and needs to and does cooperate on the international scene. The main discord between Switzerland and the OECD is on tax information sharing between Swiss and foreign tax authorities. While Swiss mutual assistance laws provide unilateral assistance to foreign states in criminal matters that satisfy the Swiss legal conditions and Swiss dual criminality, Switzerland must continually and repeatedly insist that in principle such information sharing is not part of its culture and is thus not foreseeable. Swiss isolation internationally can nonetheless be harmful to its financial sector. In this respect, during the recent Feira (Portugal) European Union summit held in June 2000, 15 EU member countries reached a provisional compromise agreement on tax information sharing under the Draft Directive on Taxation of Savings Income, effective December 31 2002. The EU member states estimated that this agreement could only be efficient if the other important financial centres outside the European Union, such as Switzerland, adopted similar measures. Since the Swiss economy is closely linked to that of the European Union, Switzerland will certainly be called upon to negotiate with the European Union in respect of the key provisions of the draft directive, that is, the choice given to each EU member state between implementing a withholding tax framework or tax information sharing framework in respect of EU resident cross-border savings held in EU member states. Likewise, the European Union will probably give Switzerland the choice to either (i) implement a withholding tax framework in respect of EU-resident Swiss bank clients, or (ii) implement a tax information exchange framework in respect of EU-resident Swiss bank clients. Under the draft directive, EU member states have a choice - some with grace periods in which to adapt their respective bank secrecy legislation - following which all EU member states would be required to adopt tax information exchange frameworks. Certain EU member states such as Luxembourg have specifically called for negotiations to be held with Switzerland, which Luxembourg fears would, by virtue of Swiss bank secrecy, obtain an unfair competitive advantage over Luxembourg as a banking/financial centre. The two-year suspension period is for the express purpose of permitting the EU to negotiate with Switzerland and other bank secrecy jurisdictions in order to obtain undertakings from these non-EU banking centres to introduce similar legislation that provides for the exchange of tax information.If the EU received these undertakings within the two-year period, then satisfactory agreements in respect of same must be signed on a bilateral basis. These bilaterals will be subject to unanimous approval by the EU member states, in addition to referenda in Switzerland requiring double majorities of both the Swiss people and Swiss cantons. Only then would the June Feira compromise agreement enter into effect. If no bilaterals are agreed, then the compromise agreement issued by the Feira summit will cease to have effect. In the wake of Feira the European Union has already decided, notwithstanding the results of negotiations with Switzerland and other banking jurisdictions, to draft a directive in respect of tax information exchange among EU member states. If Switzerland hopes to avoid taking account of EU measures providing for tax information exchange, then it will have to negotiate well and be prepared to offer a viable negotiation alternative to its traditional refusal to enter into these fiscal information exchange agreements. A viable alternative might be the proposal of a Swiss withholding tax system operated on a withholding pool basis similar to the qualified intermediary system which most Swiss banks will be implementing from January 1 2001 as regards transactions in US securities (see Impact of New US Withholding Tax Rules for Customers of Swiss Financial Institutions). Therefore, one of the main challenges to the Swiss international financial sector for the next few years is Switzerland's development of equivalent but alternative measures to administrative information sharing with foreign authorities (eg, innovative withholding tax measures), at present forbidden by Swiss law, which simultaneously respect the existing principles of Swiss law regarding the protection of personal information and the Swiss banking secrecy owed by law to Swiss bank clients irrespective of nationality or residence. Perhaps innovative withholding tax measures would provide, for example, for payment by withholding pool rates without disclosing beneficial ownership to foreign authorities. This would thus allow for effective indirect taxation on certain foreign resident Swiss bank customer savings in Switzerland, while respecting Swiss legal norms regarding protection of bank client confidentiality under Swiss banking secrecy. For further information on this topic please contact David G Forbes-Jaeger at Secretan Troyanov by telephone (+41 22 789 70 00) or by fax (+41 22 789 70 70) or by e-mail ([email protected]). The Secretan Troyanov web site can be accessed at www.secretantroyanov.com.Endnotes(1) These include G-7 (the Group of Seven), the Organization for Economic Cooperation and Development, the International Monetary Fund, the World Bank, the United Nations, the Financial Action Task Force, the Financial Stability Forum and the Basle Committee of the Bank for International Settlements. The materials contained on this web site are for general information purposes only and are subject to the disclaimer.