for Declaratory and Injunctive Relief (final draft)
Exhibit 2 An Orwellian Scheme Turns Into a Boomerang
Exhibit 3 Swiss-American Convention on Friendship, Reciprocal Establishments, Commerce and Extradition
Exhibit 4 The IRS Money Laundering Machine: QI Regulations
Exhibit 5 Declaration of Appreciation by U.S. Congress
Exhibit 6 On the Ideal Nation
Exhibit 7 Following the Flag: Pyrrhic Victory of the IRS, Barrons editorial
Exhibit 8 Swiss lawmaker's still unanswered questions on QI
Exhibit 9 Federal Councillor Villiger's problematic suspension of Penal Code article 271
Exhibit 10 Professor H. Walder's advisory opinion on how to get Swiss courts to allow breaking Swiss banking secrecy
Exhibit 1 Complaint
for Declaratory and Injunctive Relief
(http://www.solami.com/Klein2.doc - draft, 15 December 2000)
to current OECD tax data exchange initiatives, its administrative assistance
treaty relies on full reciprocity.
This could be fatal to such controversal schemes as the IRS' Qualified Intermediary Regulations.
1 On 13 February 1991 The United States has ratified the 1988 Council of Europe/OECD Convention on Mutual Administrative Assistance in Tax Matters (Interfipol Convention) which, for the US too, has come into force on 1 April 1995 (1). The Netherlands, acting also for the Netherlands Antilles and Aruba, has become a party to this treaty on 1 February 1997, while for Norway and Poland it became binding on 1 April 1995 and 1 October 1997, respectively.
2 According to article 1 of the Interfipol Convention,
"For the United States, this Convention shall apply to taxes imposed under Title 26 of the United States Code (the Internal Revenue Code of 1986), as amended, which correspond to the taxes in the categories referred to in paragraph 1.A and 1.B II and III of Article 2 of the Convention." (Annex A),4 For the United States, the Interfipol Convention thus unreservedly applies (article 2):
"The United States will not provide any form of assistance in relation to the taxes of other parties described in subparagraphs b.i or b.iv of paragraph 1 of Article 2 of the Convention (taxes imposed by or on behalf of possessions, political subdivisions, or local authorities)(as permitted by paragraph 1.a of Article 30 of the Convention)."
and, most importantly,
"The United States will not provide assistance in the recovery of any tax claim, or in the recovery of an administrative fine, for any tax, pursuant to Articles 11 through 16 of the Convention (as permitted by paragraph 1.b of Article 30 of the Convention)."
"1.Any State may, at the time of signature or when depositing its instrument of ratification, acceptance or approval or at any later date declare that it reserves the right:6 Yet, reflecting the customary principles of equal sovereignty and full reciprocity, §5 of the same reservations article 30 specifies unambiguously:
a.not to provide any form of assistance in relation to the taxes of other Parties in any if the categories listed in sub-paragraph b of paragraph 1 of Article 2, provided that it has not included any domestic tax in that category under Annex A of the Convention;
b.not to provide assistance in the recovery of any tax claim, or in the recovery of an administrative fine, for all taxes or only for taxes in one or more of the categories listed in paragraph 1 of Article 2; ..."
"A Party which has made a reservation in respect of a provision of this Convention may not require the application of that provision by any other Party; it may, however, if its reservation is partial, require the application of that provision insofar as it has itself accepted it."7 The US Internal Revenue Service had worked out with foreign banks and, on 31 December 2000, provisionally put into effect the controversial Qualified Intermediary Regulations 1441 (QI regs) (2). Despite the some 2600 US and foreign banks (3) which reportedly have applied for QI status, awareness on and opposition to these regulations (4) is rapidly growing in the financial service industry and lawmaker circles, both in- and outside of the United States. This has been on account of their questionable effects on the US economy (5), their cost, human rights and sovereignty implications (6) and their unparalleled complexity. And not least because of their development (a) in apparent violation of at least one bilateral treaty with a foreign country, (b) through usurpation of the US Congress' constitutional tax-writing and treaty-making powers(7), and (c) in disregard of administrative procedures applicable for regulations effectuating costs to the private sector in excess of $100 mio.
8 Regardless of the above detailed undertakings the United States has entered into under the Interfipol Convention - specifically its explicit refusal to "provide assistance in the recovery of any [foreign] tax claim" - QI regs require the IRS' mostly involontary contractual partners at home and abroad to provide assistance in the recovery of US tax claims against US persons. This includes, in the event, the IRS' novel and confiscatory 31% withholding tax (on capital, not on interest). It is to be carried out with US law explicitly taking precedent over any and all eventually contrary foreign law provisions, with the IRS being able to unilaterally change the groundrules. And economic key factors of foreign countries are thus to be invaded and made subservient to the whims of IRS officials and their deputies without US lawmakers having ever been consulted on whether this latest form of lex americana universalis is really helping and not hurting US national interests.
9 In the event of inadequate representations by their own governments and professional associations, financial institutions operating in jurisdictions covered by the Interfipol Convention - e.g. in the Netherlands, the Netherlands Antilles, Aruba, Norway and Poland - are thus seen to be in a particularly favorable situation for effectively opposing,e.g. by way of corresponding court actions, IRS requests to provide administrative assistance in tax matters without due full reciprocity.
and at http://www.solami.com/127.htm
(Convention text), http://www.solami.com/127-1.htm
(Explanatory Report), http://www.solami.com/127sign.htm
(reservations). The Convention was first publicly presented on
the editorial pages of the Wall Street Journal Europe under the
titles: "Off Base at the OECD"
and "European Taxmen Plot an Orwellian
Scheme" (9 May 1986), and "Waking
Up to the OECD" (7 July 1986), on the web at: http://www.solami.com/ORWELL.htm.
(2) "Application Procedure for Qualified Intermediary Status Under Section 1441 - Final Qualified Intermediary Withholding Agreement", Rev. Proc 2000-12, US Internal Revenue Service (http://www.solami.com/rp-00-12.pdf)
(3) Myrna Zelaya-Quesada, "IRS to Propose Audit Guidelines For QIs in September, Staples Says", Daily Report for Executives, Bureau of National Affairs, Washington 17 August 2001 (http://www.solami.com/QI1441.txt)
(4) Stephen J. Entin, "Treasury's Qualified Intermediary Regulations and the OECD Tax Haven Initiative: Threats to International Capital Mobility and Investment", IRET Congressional Advisory, #116, 28 June 2001 (ftp://ftp.iret.org/pub/ADVS-116.PDF); see also: http://www.solami.com/IRSaccess.htm, and "Dear Y2K rescapee and IRS Deputy" (http://www.solami.com/QInews.htm)
(5) Richard W. Rahn, "ECONOMIC GROWTH OPTIONS", Washington Times, 9 August 2001 (http://www.solami.com/RR9Aug.htm)
(6) Talking Points: "The IRS Money Laundering Machine: QI Regulations - More Government & Protection for Mafia, Less Legitimate Investments & Privacy", Washington November 2000 (http://www.solami.com/comments3.htm)
(7) Gilbert Morris, "Signs and Sovereignty: The Growth of Supervenient Authority in the United Nations", contribution to meeting of the Competitive Enterprise Institute, Washington September 2001 (http://www.solami.com/MorrisUN.htm); Bruce Zagaris, "Exchange of Tax Information Policies at the Millennium: Balancing Enforcement with Due Process and International Human Rights",International Platform Association, Washington 9 August 2001 (http://www.solami.com/Zagaris.htm).
Convention signed at Bern November 25,1850ARTICLE II
Senate advice and consent to ratification, with amendments, March 7, 1851 (1)
Ratified by the President of the United States, with amendments, March 12, 1851 (1)
Senate advice and consent to ratification of "new draft", with amendments, May 29,1854 (1)
Ratified by Switzerland July 30,1855
"New draft" ratified by the President of the United States, with amendments, November 6,1855 (1)
Ratifications exchanged at Washington November 8,1855
Entered into force November 8,1855
Proclaimed by the President of the United States November 9,1855
Articles VIII to XII, inclusive, terminated March 23, 1900 (2);
articles XIII to XVII, inclusive, superseded March 29, 1901, by treaty of May 14,1900 (3)
More Government & Protection for Mafia, Less Legitimate Investments
by Anton Keller and Andrew F. Quinlan
(url: www.solami.com/QIcomment.htm ¦ .../stammsbv.htm ¦ .../capitalism.html)
Geneva/Washington, 22 November 2000 - The U.S. Internal Revenue Service (IRS) promulgated new regulations which, effective 1 January 2001, would impose a world-wide confiscatory backup withholding tax of 31% on money invested in U.S. securities from overseas - over US$ 6000 billion - except on money where the IRS knows its beneficial owners or accepts them to be non-U.S. persons. Even capital invested abroad would be exposed to this new IRS taxation - if only the order came from America or involved a U.S. account. Providing IRS protection at 31% would suit some Mafia kingpins just fine. However, the rest of us may be tempted to run for the door. An investment stampede out of the U.S. market can thus not be excluded. Also, foreign tax collectors could seek reciprocal treatment with foreign rules imposed on U.S. citizens and businesses at home. Behind the back of Congress, the IRS thus not only stretches but unwisely ventures beyond its prerogatives. And while significant adverse effects would be a certainty, experts foresee no appreciably higher tax revenues or a real dent on U.S. tax evasion.
As the opposite of what tax reform and tax competition are all about, the IRS has been hiding this latest power grab behind a convenient multi-purpose smoke-screen. Ostensibly designed to catch tax dodgers investing in the U.S. market through off-shore centers, this anti-market, anti-sovereignty and anti-privacy tax and its enforcement instrument, the QI regulations [www.solami.com/rp-00-12.pdf] (www.irs.gov/plain/bus_info/qi/index.html) are in fact ill-considered and dangerous to U.S. interests. For they also void or erode the investment incentives associated with comparatively low U.S. taxes, they put off-shore branches of U.S. financial institutions at a competitive disadvantage, and they jeopardize a key motor of the market economy, i.e. reliable financial privacy. Fundamentally flawed, their enactment has already been twice postponed. Yet, the legally required cost/benefit analysis is still lacking. The IRS should thus withdraw the proposal and reconsider how best to serve the U.S. economy without infringements on foreign jurisdictions.
What exactly are QI Regulations?
Qualified Intermediary (QI) regulations are extraordinarily complicating texts with which the IRS seeks to globally impose a backup withholding tax regardless of its market-upsetting risks and without congressional approval. Theoretically, it applies only to "U.S. persons"- i.e. U.S. citizens, dual nationals, green card holders, U.S. residents - who invest in the U.S. market through financial institutions abroad. In practice, all recipients of U.S.-source income or capital gains are thus faced with a choice: either they withdraw their investments from the U.S. before the end of this year, or - as long as they are not, to the satisfaction of the IRS, identified or shown to be non-U.S. persons - they risk their U.S. investments to be slammed with a confiscatory backup withholding tax of 31% (i.e. 31% on principal, not on interest or gains)! This tax is to be collected on behalf of the IRS by Qualified Intermediaries (QIs) which, in return, will be able to provide some sweeteners to investors. Overseas financial institutions practicing IRS-approved Know-Your-Costumer rules can apply for entering into an agreement with the IRS for directly enforcing these new regulations as QIs, with IRS-approved and QI-paid fiduciaries serving as auditors acting under U.S. laws.
Did Congress ever intend to let the IRS impose, on its own, a world-wide
No, if the original intent & purpose of the U.S. taxcode and other applicable authorities are a guide.
What are we talking about in terms of foreign investments in the
In its latest report, the U.S. Federal Reserve Board stated the total foreign-held U.S. financial assets to be US$ 6277 billion ("Flow of Funds Accounts of the United States", Federal Reserve Board, Washington 9 June 2000 - www.federalreserve.gov/releases/Z1/Current/). Nobody seems to have a clear idea whether the undeclared money originating from U.S. persons amounts to much of the total investments from abroad, and whether the risks involved in this IRS witchhunt will not far outweigh the benefits. Some observers see the QI regulations as a direct cause for both U.S. persons and foreign investors to at least temporarily withdraw their investments from the U.S. market before the end of the year. The negative investor advice currently circulating among investment advisers in the U.S., France, Great Britain, Italy, Japan, Switzerland, Luxemburg and elsewhere may indeed snowball - at considerable risks to the U.S. economy. To be sure, the usual impact and cost/benefit analysis required by U.S. law are still missing. The bounds of administrative lawmaking are overstepped when untested, far-reaching and globally impacting directives and norms like the IRS' QI regulations are enacted without congressional guidance and affirmative action by the constitutional lawmaker.
Why Are the QI Regulations Not Only Harmful to U.S. Interests but
Helping the Mafia?
U.S. persons determined to avoid U.S. taxes, will always find lawful ways, e.g. by shifting their investments out of U.S. assets. They don't need the anonymity offered by the QI Regulations. Only the Mafia does - for reasons of its own. Mafia treasurers would appreciate the guaranteed anonymity obtained through a 31% protection payment to the IRS. The QI regulations might thus not only fail their advertised purpose, but would likely cause significant damage to U.S. interests, e.g. by being:
1. Bad for the market_______________
The regulations would hit all persons investing in the U.S., non-U.S. firms included. Failure to qualify as QI would mean higher withholding taxes, yet qualification would force the institutions and investors to endure considerable red tape and costly regulatory burdens. The solution: to invest someplace other than America. Professionals have thus warned that the new regulations could trigger an exodus from U.S. securities.
The QI regulations would create a discriminatory system imposing different tax rates on global investment. Also, international tax specialists that have commented have all criticized these regulations for their extraordinarily bewildering complexity, amounting to a new non-tariff trade barrier. Indeed, for foreign institutions and investors particularly from the non-English speaking world it would be difficult to decipher the intricacies of U.S. regulations even without the QI's numerous cross-references to the Internal Revenue Code. As such, they would violate open trade rules.
In order to comply, foreign institutions would have to endure large information technology costs, legal fees and on-going auditing costs. Small- and medium-sized companies typically do not have in-house legal assistance and are not used to engage costly outside counsel for interpreting 60-odd pages of American legalese. As Wall Street has no monopoly for foreigners to invest, QI compliance costs and burdens may thus lead many institutions to avoid the U.S. market altogether.
2. Bad for sovereignty
The IRS is adding new personnel to accomodate hundreds of foreign institutions which, under threat of higher withholding taxes, it is deputizing for enforcing US information-gathering requirements and the collection of congressionally unapproved confiscatory and other U.S. taxes. The QI regulations would also interfere with nations which genuinely respect financial privacy. This puts long-term U.S. interests at risk as aliens may insist on and receive reciprocal treatment. The specter of foreign taxmen, backed by the OECD's international police arm FATF, harrassing U.S. citizens and companies in the United States may not be to the liking of many U.S. lawmakers either. Not least as this would mean new regulatory burdens for U.S. institutions and investors. And as it could violate and generally erode the respect for existing tax and other treaties.
3. Bad for privacy
Foreign institutions would be forced to engage in a massive data collection exercise to determine whether or not their clients are "U.S. persons". This is an unreasonable and disproportionately time-consuming and costly task, particularly given the complex rules governing dual citizens, green card holders, varying tax rules for different types of investments, and the use of multi-tiered structures and multi-country entities. As such, the QI regulations represent an attempt by the IRS to export Know-Your-Customer rules that force financial institutions to spy on their customers, i.e. to act contrary to their legal duties and traditional fiduciary obligations. American consumers revolted against similar provisions that regulators attempted to impose in the U.S. Despite of this and behind the back of Congress, the IRS seeks to get these discredited invasive rules adopted overseas and - by way of the Paris-based Organization for Economic Cooperation and Development (OECD) - to impose them by stealth on the U.S. market.
4. Bad for foreign branches of U.S. financial institutions
The QI regulations entail a competitive disadvantage on foreign branches of U.S. financial institutions in that all investments which their U.S. person clients hold anywhere must be identified to the IRS, whereas U.S. persons banking through their QI host country competitors would need to report only investments made in the U.S. market. This is seen to be in contradiction not only with non-discrimination host country statutes but with treaties binding on the United States.
Ninety-ninth Congress of the United States of America
AT THE FIRST SESSION
Begun and held at the City of Washington on Thursday, the third day of January,
one thousand and nine hundred and eighty-five
To commend the people and the sovereign confederation of the neutral nation of Switzerland for their contributions to freedom, international peace, and understanding on the occasion of the meeting between the leaders of the United States and the Soviet Union on November 19-20, 1985, in Geneva, Switzerland.
Whereas Switzerland has long played a leading role among nations in the search for international peace and understanding, has generously provided its territory and assistance for international organizations and conferences, and its diplomatic services for arbitration and mediation of disputes among states; and(see also: www.solami.com/diplomacy.htm¦ .../edouardbrunner.htm | .../summit.htm ¦ .../commercetreaties.htm¦ .../motionfrueh.htm ¦ .../warfare.htm ¦ .../diamantball.htm ¦ .../NPT.htm ¦ .../nptmotion.htm ¦ .../iran.htm ¦ .../iranmail2.htm ¦ .../pelosi.htm ¦ .../ashur.htm)
Whereas the government of Switzerland has for many years generously represented the diplomatic interests of other nations, including the United States, in lands where these nations have no relations; and
Whereas the United States and Switzerland share a common heritage, based on a commitment to political and religious freedoms of expression, on our shared legacy of a constitutional and Federal Government, on our commitment to human rights and the dignity of the individual, and on our firm belief that a free enterprise economy provides the greatest prosperity for the greatest number of people; and
Whereas Switzerland, and the beautiful and historic city of Geneva, ever mindful of their tradition and vocation in the search for international peace, have once again offered their territory and facilities for a major international meeting, on the occasion between the leaders of the United States and the Soviet Union, on November 91-20, 1985:
Now, therefore, be it
Resolved by the Senate and House of Representatives of the United States of AMerica in Congress assembled, That it is the sense of the Congress that, in recognition of their many contributions and as an expression of the warm gratitude of the American people for the strong bonds of friendship which have long existed between our two great democracies, the people and nation of Switzerland are to be commended for all they have done throughout this century in the search for freedom, international peace, and understanding.
Pacta sunt servanda? Not invented here!
We have LEX AMERICANA, and PAX AMERICANA is around the corner!
On June 15, 1987, the U.S. Supreme Court (28), in the Aerospatiale case, in effect, handed down a blanc check for the U.S. Administration and the U.S. Judiciary for disregarding treaty obligations and channels for obtaining evidence abroad. The Court approved recourse to the national means of coercion - such as the subpoena power and contempt of court citations - if they promise quicker results at less costs, i.e.
"The Congress shall have power: ... To define and punish offenses against the law of nations" (art.1, sec.8, al.10).
"No State shall ... pass any ... law impairing the obligation of contracts ... No State shall, without the consent of Congress, enter into any agreement [or dispute] ... with a foreign power, or engage in war" (art.1, sec.10, al.1 and 3).
"The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority" (art.3, sec.2,al.1).
"This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land" (art.6,al.2).
"This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be [in harmony with the law of nations, thus constituting] the supreme law of the land" (which is seen as the real meaning of art.6,al.2).
We would like to believe that this was indeed what the former Swiss Attorney General,Hans Walder, had in mind when, with his "LEGAL OPINION" of October 26, 1981, he advised his friends at the US Securities and Exchange Commission on how to break the Swiss bank secrecy without exposing the banks in question to Swiss criminal proceedings. Walder's advice (31):
Not surprisingly, some Swiss lawmakers thus wanted Walder to be tried for economic high treason. But they eventually threw in the towel upon learning of Walder's possibly very ancient source of inspiration, and after considering the argument with which the then Minister of Justice Häberlin, in 1928, fought in Parliament against the adoption of the penal clause (art.267 CP) that would have to serve as basis for prosecution:
Further down the road, in another unfamous case (34), the New York Times headlined its editorial "This is Gunboat Law", saying:
The legal hierarchy, in many places, has evolved aberrantly
The U.K. High Court, on April 4, 1991, upheld an order for Nazir Chinoy, a manager of the Luxembourg-based BCCI (Bank of Credit and Commerce International) to be extradited to the U.S. to stand trial for allegedly taking part in a conspiracy to launder profits from illegal drugs - despite allegations that the evidence against Mr.Chinoy was obtained in breach of the European Convention on Human Rights. Lord Justice Thomas Bingham said
This is another example (37) of how rules originally intended to safeguard interests of the Citizen have been lost sight of, respectively have gradually been voided or turned to the relative advantage of the state institutions. For said, in effect, deprivative British rule seems to have its origin in the 1627 Petition of Right, whereby the King granted in Parliament that
The Congress shall have Power
To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations
For those who believe the recent American prosperity has rested on a flow
of foreign capital seeking investment opportunities on these shores, a
test is under way. Acting in zealous pursuit of evildoers, the Internal
Revenue Service claims a tax lien on every investment held by foreign banks
and brokers whose clients might turn out to be American taxpayers.
Those Americans, you see, might be trying to evade taxes on interest, dividends or capital gains. So unless the foreign financial institution happens to be located in a country the Treasury designates as cooperative, and unless the institution also pledges to investigate its own customers, there will be the IRS to pay before any money leaves the U.S.
How much? Starting January 1, a withholding tax of 31% on interest, dividends and gross proceeds of securities sales will be levied on all securities transactions that are not carried out through "Qualified Intermediaries," unless the unqualified intermediary identifies its client so the IRS can verify the client's claim that no American tax should be due.
Unidentified clients of unqualified intermediaries will be subject to the withholding, even if they are not Americans, even if they are not subject to any U.S. tax. If they won't identify themselves, the withholding will become a permanent confiscation.
American taxpayers with a passion for privacy, however, will be able to keep their secrets and pay their taxes if they deal through a Qualified Intermediary.
There has not yet been a rush for the exits, but imagine the coming annoyance of foreign investors who own stocks and bonds traded on U.S. markets whose bankers have neglected to become Qualified Intermediaries. Especially imagine the annoyance of those who sell their stocks or bonds at a loss, since the withholding applies to the gross proceeds, not to taxable net profit.
The Treasury's plans are hot news in countries with rigorous bank secrecy laws and those that the Treasury considers havens for Americans violating tax and other laws. The Bahamas, Cayman Islands, Cook Islands, Dominica, Israel, Lebanon, Liechtenstein, Marshall Islands, Nauru, Niue, Panama, Philippines, Russia, St. Kitts & Nevis, and St. Vincent & the Grenadines appear on a Treasury list of countries with "deficiencies" in their controls on money laundering. About 20 other countries are on another blacklist, maintained by the international Organization for Economic Cooperation and Development, that identifies "uncooperative" tax havens. Financial institutions in such countries still can make the grade as Qualified Intermediaries, but only if the Treasury approves their local tax laws, especially those requiring them to know their customers.
The Cayman Islands has already been given such an exception and other countries, notably Israel and the Bahamas, have been arguing and pleading for similar recognition. Financial institutions fear it may be almost impossible for them to conduct international business without status as Qualified Intermediaries.
Even in acceptable secret-banking countries, such as Switzerland and Luxembourg, financial institutions still have to clear substantial hurdles before they can become Qualified Intermediaries. After all, the IRS is trusting them to know their customers and assess the liabilities of their American taxpayer customers while keeping their identities secret.
International financial experts say major Swiss banks have been particularly adept at dealing with the U.S. paperwork, because they saw a competitive advantage in providing tax compliance and legal secrecy to clients with U.S. tax liabilities and other needs for privacy. The new tax regime may be better than the original IRS goals of subjecting all foreign investors to withholding and identification. But we doubt the writ of the IRS could run so far, especially into Switzerland. The IRS had to co-opt the hundreds of billions of dollars of investments on U.S. markets. The Qualified Intermediary rules are not so much a compromise as they are an example of dividing to conquer.
But what has the IRS really conquered? The first obvious result of the new rules is that they will reduce the supply of foreign capital for investment in American companies. A second is that more American companies will incorporate themselves offshore and keep their securities off the U.S. markets.
Neither result will be good for America. The IRS has confused the pursuit of income tax with the pursuit of happiness. The value of the damage could be far greater than any possible revenue gain.
Sehr geehrte Herren,
Gemäss Rundschreiben der Schweizerischen Bankiervereinigung (SBV) vom 15.11.2000 hat das Eidg.Finanzdepartement mit Brief vom 7.11.2000 dem SBV-Begehren vom 2.8.2000 stattgegeben, wonach eine Bewilligung gemäss Artikel 271 Ziffer 1 StGB zu erteilen sei für die Personen, "welche mit dem Vollzug der zwischen der US-Steuerbehörde ("IRS") und schweizerischen Banken oder Effektenhändlern abgeschlossenen 'Qualified Intermediary Withholding Agreements' befasst sind".
Die damit zum Ausdruck gebrachten Vorgänge verdienen eine dringende Überprüfung durch die zuständigen parlamentarischen Kontrollstellen. Denn sie sind m.E. unvereinbar mit unseren Gesetzen, Traditionen und Interessen. So ist z.B. fraglich, ob unser Gesetzgeber jemals beabsichtigte es per Bewilligung gemäss Art.271 StGB oder sonstwie zuzulassen, dass fremdes Recht und fremde Richter das hiesige Tun und Lassen hiesiger Personen beherrschen mögen. Es ist fraglich, ob eine solche Bewilligung rechtens mehr als ausnahmsweise, nicht nur punktuell, und nicht "nur einem fremden Staat" (Berichterstatter Rohr, N Amtl.Bull. 1950 S.214), sondern im Gegenteil zeitlich unbeschränkt für einen ganzen Wirtschaftssektor erteilt werden kann. Es ist fraglich, ob durch private Vereinbarungen mit ausländischen Behörden gesetzliche Schutzwälle ausser Kraft gesetzt werden können ohne dass der hiesige verfassungsmässige Gesetzgeber auch nur begrüsst worden wäre. Es ist fraglich, ob unser Gesetzgeber es zulassen wollte, kann oder will, dass einer unser wichtigsten Wirtschaftszweige sich zum Erfüllungsgehilfen, zum Eintreiber und zum Denunzianten fremder Steuerbehörden degradieren lässt. Und es ist fraglich, ob es mit der Würde und den Interessen eines souveränen Staates zu vereinbaren ist, wenn dessen Regierung sich von privatrechtlichen faits accomplis steuern lässt.
Demzufolge sind auch Bemühungen der betroffenen Bankkreise zu begrüssen und zu unterstützen, welch im Interesse des Landes, unserer Würde und unserer Wirtschaft darauf abzielen, das Problem an der Wurzel, d.h. in Amerika selbst zu lösen. Auf dass uns diese neueste und möglicherweise gefährlichste Ausgabe der lex americana universalis, dieses "trojanische Pferd für fremde Richter", erspart bleibe - und so Art.271 StGB als Eckpfeiler unseres Abwehrdispositifs gegen fremde Eingriffe in unser Hoheitsgebiet uns ungeschwächt erhalten bleibt.
cc: Verband Schweizerischer Kantonalbanken, 4002 Basel
Verband der Auslandbanken in der Schweiz, 8023 Zürich
Association des Banquiers Privés Suisses, 1211 Genève 11
Groupement des Banquiers Privés Genevois, 1211 Genève 11
DEPARTEMENT FEDERAL DES FINANCES
DIPARTIMENTO FEDERALE DELLE FINANZE
Aeschenplatz 7 / Postfach
Bewilligung gemäss Art. 271 StGB
betreffend "Qualified Intermediary Withholding Agreements", welche zwischen der US Bundessteuerbehörde und Schweizerischen Banken oder Effektenhandlern abgeschlossen werden
Sehr geehrte Damen und Herren
Mit freundlichen Grüssen
Der Departementsvorsteher: K. Villiger
Diese Bewilligung wird der Schweizerischen Bankiervereinigung zu Handen der Institute, welche mit der US-Bundessteuerbehörde ein "Qualified Intermediary Withholding Agreement" abschliessen, schriftlich eröffnet.
Kopie z.K. an:
SchweizerischeNationalbank, Generalsekretariat, Börsenstrasse 15, 8001 Zürich
Bundeskanzlei,  3003 Bem Generalsekretariat EJPD,  3003 Bem
Bundesanwaltschaft, Taubenstrasse 16, 3003 Bem Rechtsdienst EFD, Bundesgasse 3, 3003 Bem
Eidg. Steuerverwaltung, Abteilung für internationales Steuerrecht und Doppelbesteuerungssachen, Eigerstrasse 65, 3003 Bem EDA, Direktion für Völkerrecht, Bundeshaus West, 3003 Bem
Eidg. Bankenkornmission, Schwanengasse 12, 3001 Bem
1. I STUDIED THE LEGAL OPINION OF MR. AUBERT DATED 13TH JULY 1981 IN THE ABOVE MENTIONED CASE. ALL THAT MR. AUBERT SAYS IN RELATION TO ARTICLES 273 AND 162 OF THE SWISS PENAL CODE AND ARTICLE 47 OF THE SWISS BANKING ACT IS AS A GENERAL APPROACH CORRECT AND VALID.
2. MR. AUBERT, HOWEVER, DOES NOT PROPERLY DEAL WITH THE QUESTION: WHAT IF THE FOREIGN (NON-SWISS) AUTHORITY, FOR INSTANCE A U.S. JUDGE, DOES NOT TAKE INTO CONSIDERATION SWISS LEGISLATION? WHAT IF THE FOREIGN AUTHORITY DOES NOT KNOW SWISS LAW OR IS NOT WILLING TO TAKE IT INTO CONSIDERATION, WHATEVER THE REASONS MIGHT BE? IN SUCH A CASE, THE PERSON WHO SHOULD GIVE THE INFORMATION REQUESTED IS A VICTIM OF TWO CONFLICTING OBLIGATIONS: (1) HE SHOULD GIVE INFORMATION, FOR INSTANCE AS A WITNESS, TO THE FOREIGN AUTHORITY, AND IF HE DOES NOT HE WILL BE PUNISHED (FINE, IMPRISONMENT, LOSS OF LICENSE FOR HIS ENTERPRISE AND SO ON); (2) IF HE GIVES THE INFORMATION TO THE FOREIGN AUTHORITY, HE COULD BE PUNISHED "AT HOME" (SWITZERLAND) ACCORDING TO ARTICLES 273 AND 162 OF THE SWISS PENAL CODE, AS WELL AS ARTICLE 47 OF THE SWISS BANKING ACT (IF HE IS A BANKER), BECAUSE HE GAVE AWAY SECRETS PROTECTED BY SWISS LAW.
3. IT IS NOT THE FIRST TIME THIS PROBLEM HAS OCCURRED, AND THERE ARE A FEW SWISS COURT DECISIONS DEALING WITH THIS CONFLICT. IN THESE DECISIONS THE JUDGES EXAMINED THE CASES UNDER ARTICLE 34 OF THE SWISS PENAL CODE, CALLED "STATE OF NECESSITY", WHICH SAYS (IN FREE TRANSLATION): "THE (CRIMINAL) ACT SOMEBODY COMMITS TO PROTECT HIS OWN GOOD ("GOOD" I.E. INTEREST), ESPECIALLY LIFE, BODY, FREEDOM, HONOR AND FORTUNE, FROM AN IMMEDIATE DANGER THAT CANNOT OTHERWISE BE AVOIDED, WILL NOT BE PUNISHABLE IF HE IS NOT RESPONSIBLE FOR THE DANGER AND IF ONE CANNOT EXPECT HIM TO GIVE UP HIS (MORE VALUABLE) GOOD."
4. PRACTICALLY THE SAME HOLDS IF SOMEBODY HELPS ANOTHER PERSON (OR ENTERPRISE) AVOID DAMAGE BY DESTROYING ANOTHER LESS VALUABLE GOOD.
5. TO BE QUITE CLEAR, IN ORDER TO ACCEPT A STATE
OF NECESSITY THE FOLLOWING CONDITIONS MUST BE FULFILLED:
A) THERE IS A DANGER TO A GOOD, FOR INSTANCE TO SOMEBODY'S FORTUNE;
B) THIS DANGER IS IMMEDIATE AND CANNOT BE AVOIDED IN A MILDER WAY THAN BY COMMITTING A CRIMINAL ACT;
C) THE PERSON ACTING IS NOT RESPONSIBLE FOR THE CONFLICT HE GOT INTO;
D) WE CANNOT EXPECT THE PERSON IN QUESTION TO GIVE UP HIS GOOD (OR THE GOOD OF ANOTHER PERSON) BECAUSE THE ENDANGERED GOOD IS MORE IMPORTANT THAN THE GOOD HE IS DESTROYING (TO SAVE THE FIRST). THIS COMPARISON OF GOODS INVOLVED IS IMPORTANT.
6. IF ALL THESE CONDITIONS ARE FULFILLED, THE PERSON COMMITTING THE CRIMINAL ACT WILL NOT BE PUNISHABLE UNDER SWISS LAW. THE COURT OR THE INVESTIGATING MAGISTRATE WILL FIND HIS ACTION JUSTIFIED OR EXCUSED.
7. I DO NOT KNOW WHAT THE SANCTIONS IN THE UNITED STATES WOULD BE IF BANCA DELLA SVIZZERA ITALIANA OR THEIR REPRESENTATIVES REFUSE TO GIVE THE INFORMATION REQUIRED BY THE SEC OR BY A U.S. JUDGE. IF IT WERE ONLY A RELATIVELY SMALL FINE, A SWISS JUDGE APPLYING ARTICLES 273 AND 162 OF THE SWISS PENAL CODE AND ARTICLE 47 OF THE SWISS BANKERS' ACT COULD HARDLY CONSIDER AS A STATE OF NECESSITY THE SITUATION OF THE PERSON GIVING AWAY SECRETS. HOWEVER, IF THE SANCTIONS (IN CONSEQUENCE OF NOT GIVING THE REQUIRED INFORMATION) WERE, FOR EXAMPLE, A VERY HIGH FINE, IMPRISONMENT OR LOSS OF LICENSE TO CARRY OUT BANKING TRANSACTIONS IN THE U.S., IT WOULD BE DIFFERENT: I THINK THE SWISS JUDGE WOULD QUALIFY THE SITUATION AS NECESSITY, WITH THE CONSEQUENCE THAT HE COULD NOT PUNISH THE PERSON INVOLVED. BUT I AM NOT A SWISS JUDGE, AND I CANNOT SAY FOR SURE HOW A SWISS JUDGE WOULD DECIDE.
8. THERE IS, HOWEVER, A DECISION OF THE ZÜRICH
HIGH COURT IN THIS RESPECT, THE "ACKERMANN CASE" (NOT PUBLISHED AS FAR
AS I KNOW): MRS ACKERMANN, SWISS CITIZEN, INHERITED FROM HER HUSBAND
A SMALL ENTERPRISE IN CZECHOSLOVAKIA (CSSR) DIRECTED BY A CZECHOSLOVAK
CITIZEN. THE SALARY OF THIS MAN WAS PARTLY PAID IN THE CSSR, PARTLY
IN SWITZERLAND. NOT INFORMING THE CSSR AUTHORITIES OF THE SWISS SALARY
HE RECEIVED WAS A VIOLATION OF CSSR LAW. WHEN MRS. ACKERMANN ENTERED THE
CSSR AFTER RECEIVING THE INHERITANCE, SHE WAS INTERROGATED BY THE CSSR
AUTHORITIES AND WAS TOLD SHE COULD LOSE HER ENTERPRISE IN THE CSSR IF SHE
DID NOT GIVE INFORMATION ABOUT THE CSSR DIRECTOR'S SALARY IN SWITZERLAND.
SHE THUS MADE SOME STATEMENTS VIOLATING IN PRINCIPLE ARTICLE 273 OF THE
SWISS PENAL CODE. RETURNING TO SWITZERLAND SHE SENT ADDITIONAL INFORMATION
TO THE CSSR AUTHORITIES, WHICH HAD NOT BEEN REQUIRED BY THEM. A CRIMINAL
CASE WAS OPENED AGAINST HER IN SWITZERLAND. SHE WAS NOT PUNISHED
FOR GIVING AWAY SECRETS ABOUT THE DIRECTOR'S SALARY WHILE INTERROGATED
IN THE CSSR, BECAUSE THE SWISS COURT FOUND SHE HAD ACTED WHEN IN A STATE
OF NECESSITY. ON THE OTHER HAND, SHE WAS CONVICTED FOR GIVING AWAY
ADDITIONAL SECRETS AFTER HAVING RETURNED TO SWITZERLAND, THAT HAD NOT BEEN
REQUIRED BY THE CSSR AUTHORITIES.
9. THERE ARE OTHER COURT DECISIONS IN RELATION TO ARTICLES 273 AND 34 (STATE OF NECESSITY).
10. IF YOU NEED A MORE EXTENSIVE LEGAL OPINION OF THE PROBLEM AND MORE COURT DECISIONS, PLEASE LET ME KNOW.
PROF. DR. HANS WALDER, BERNE FORMER
ATTORNEY GENERAL OF SWITZERLAND
BERNE, OCT. 26, 1981
ROBERT B. BLACKBURN, ESQ. SECURITIES AND EXCHANGE
26 FEDERAL PLAZA - ROOM 1100 NEW YORK, NEW YORK 10007
District Court, Southern District of Florida (Miami)
Judge Alan S. Gold, email@example.com
STAFF CONTACT INFORMATION:
305.523.5580 (Judicial Assistant) [Lynn Surowiec] E-Mail: Lynn_Surowiec@flsd.uscourts.gov
305.523.5584 (Courtroom Deputy) [Jacob Hasbun] E-Mail: Jacob_Hasbun@flsd.uscourts.gov
305.523.5588 (Court Reporter) [Joseph Millikan] E-Mail: Joseph_Millikan@flsd.uscourts.gov
|U.S. Treasury, IRS||UBS AG||amicus curiae|
|Stuart D. Gibson
U.S. Department of Justice
P.O. Box 403
Ben Franklin Station
Washington, D.C. 20044
(202) 307-6586 (Gibson)
Facsimile: (202) 307-2504
Richard D. Euliss
|Eugene E. Stearns
Ana Hirfield Barnett
Gordon McRae Mead Jr.
John F. Savarese
Martin J.E. Arms
Ralph M. Levene
Francis P. Barron
David N. Greenwald
John C. Dotterrer
Stephan E. Becker*
European Bankers Federation
Kathleen M. Pakenham
Owen C. Pell