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2016 | OriginalPaper | Buchkapitel

5. International Tax Enforcement in the United States

verfasst von : David S. Kerzner, David W. Chodikoff

Erschienen in: International Tax Evasion in the Global Information Age

Verlag: Springer International Publishing

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Abstract

International tax enforcement may comprise an examination or investigation process, an enforcement or collections process, and, where warranted, a criminal prosecution process. This chapter will be of particular interest to professionals who work in wealth management, accounting, and law and who have clients with offshore or delinquent compliance issues concerning the tax or foreign-reporting laws of the United States. It explains the domestic administrative measures relied upon by the United States to obtain foreign-based taxpayer information for the purpose of conducting a civil audit or examination, or a criminal investigation. Without the ability to verify the foreign earned income of its citizens and residents, the United States would not be able to effectively or fairly administer its tax system, which is based on the taxation of worldwide income. Hence, the focus of this chapter is on understanding the framework of legal powers granted to the fiscal authorities in the United States to obtain taxpayer information for the administration and enforcement of their respective tax laws and to combat non-compliance related to offshore accounts, where this information is not currently in the government’s possession, or is otherwise unobtainable from an unwilling taxpayer or record holder.

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Vorheriges Kapitel International Tax Enforcement in Canada

Nächstes Kapitel The Role of Canada’s Tax Information Exchange Agreements in the Fight against Offshore Tax Evasion

See United States, Congress, Joint Committee on Taxation, Tax Compliance and Enforcement Issues with respect to Offshore Accounts and Entities (Washington, DC: Joint Committee on Taxation, 2009) at 44 [JCT, Enforcement Issues].

465 US 805 at 815–16 (1984), cited in Monica Gianni, “IRS Investigative Authority” in Boris Bittker & Lawrence Lokken, Federal Taxation of Income, Estates, and Gifts (Thomson Reuters/WG&L) (Checkpoint) at 112.2.1 [Revised].

Gianni, above note 2.

See Joshua Blank, “In Defense of Individual Tax Privacy” (2012) 61 Emory Law Journal 265 at 267, quoting Boris I Bittker, “Federal Income Tax Returns — Confidentiality vs. Public Disclosure” (1981) 20 Washburn Law Journal 479 at 480–81: when the income tax was first introduced in 1862 to pay for the American Civil War, the statute required the names of taxpayers and their liabilities to be open to public access. In this article, Professor Blank examines the relationship between individual tax privacy and individual tax compliance, arguing that tax privacy allows the government to influence individuals’ perceptions of its tax enforcement strengths without exposing its weaknesses, which would become apparent without appropriate measures of confidentiality.

Internal Revenue Code, USC 26 (1986) of 1986, as amended, and the Treasury Regulations issued thereunder at § 6103(a) [Code]. Section 6103, relating to tax return privacy, was rewritten by Congress in 1976 in part to address privacy concerns following the Watergate scandal: see M Saltzman & L Book, IRS Practice and Procedure (Thomson Reuters/WG&L, 2012 ed) (Checkpoint) ch 2B and 4C. Although the Privacy Act of 1974, 5 USC ch 5 § 552a, provides certain safeguards against the invasion of personal privacy, Code, ibid, § 6103 expressly regulates the disclosure of tax return information (Saltzman & Book, ibid, ch 2B). Exceptions to the general rule of IRS non-disclosure may be made for a variety of reasons involving tax administration and law enforcement: see Code, ibid, §§ 6103(c)–(o); Blank, above note 4 at 279.

Code, above note 5, §§ 6103(b)(1) & (2).

Ibid, § 6103(k)(4).

Ibid, § 6105(b).

See United States, Conference Report to Accompany H.R. 4577, HR Conf Rep No 106-1033 (2000) at 1012, online: www.congress.gov/106/crpt/hrpt1033/CRPT-106hrpt1033.pdf [US Conference Report]. The identities and information of taxpayers and the identities of countries involved in EOI are protected from public disclosure: Code, above note 5, § 6105. See also Tax Analysts v Internal Revenue Service, 217 F Supp 2d 23 at 28 (DDC 2002), citing Tax Analysts v Internal Revenue Service, 152 F Supp 2d 1 at 11 (DDC 2001).

See US Conference Report, above note 9.

15 November 2006, Art 26(2), online: www.treasury.gov/press-center/press-releases/Documents/hp16801.pdf [US Model Tax Treaty].

Code, above note 5, § 6105(b)(1).

Ibid, § 6105(b)(2).

Ibid, § 6105(b)(3).

Ibid, § 6105(b)(4).

See OECD, Global Forum on Transparency and Exchange of Information for Tax Purposes Peer Reviews: United States 2011 — Combined: Phase 1 + Phase 2 (Paris: OECD, 2011) at 62, online: http://dx.doi.org/10.1787/9789264115064-en [OECD, US Peer Review].

For example, pursuant to Code, above note 5, § 7213, the willful unauthorized disclosure of a return or return information may result in a felony crime subject to a fine of $5,000, imprisonment for five years, or both. Further, under Code, ibid, § 7213A, the willful unauthorized access to or inspection of returns or return information may result in a misdemeanour offence subject to a fine of $1,000, imprisonment for one year, or both.

See, generally, Right to Financial Privacy Act of 1978, USC tit 12 §§ 3401–22 [RFPA].

Ibid, §§ 3402 and 3413(c). See also OECD, US Peer Review, above note 16 at 67. In general, the RFPA also does not apply to information subject to a grand jury subpoena: see OECD, US Peer Review, above note 16 at 71.

RFPA, above note 18, § 3413(k). See also OECD, US Peer Review, above note 16 at 67.

See OECD, US Peer Review, above note 16 at 67.

See ibid at 65.

See ibid at 61.

The IRS has issued three new directives relating to IDRs: “Large Business & International Directive on Information Document Requests (IDRs),” 04-0613-004 (18 June 2013), online: www.irs.gov/Businesses/LBI-Directive-on-Information-Document-Requests; “Large Business and International Directive on Information Document Request Enforcement Process,” 04-1113-009 (4 November 2013), online: www.irs.gov/Businesses/Corporations/Large-Business-and-International-Directive-on-Information-Document-Request-Enforcement-Process; “Large Business and International Directive on Information Document Requests Enforcement Process,” 04-0214-004 (28 February 2014), online: www.irs.gov/Businesses/Large-Business-and-International-Directive-on-Information-Document-Requests-Enforcement-Process [February 2014 Directive].

See February 2014 Directive, above note 24.

See ibid.

See Klassie v United States, 289 F 2d 96 (8th Cir 1961): taxpayer’s giving false or incomplete records or being uncooperative with agent may be evidence of fraudulent intent; Bradford v Commissioner of Internal Revenue, 796 F 2d 303 (9th Cir 1986): non-cooperation with IRS, failure to file, and knowing failure to pay tax may be evidence of fraud.

The IRS can apply for a district court order to arrest the taxpayer pending a contempt and enforcement hearing, and if the court orders enforcement, the summoned taxpayer will be held in contempt for further failure to comply: Code, above note 5, § 7604(b). The IRS may also recommend prosecution of the taxpayer for willful failure to comply with a summons: Code, ibid, § 7210.

420 US 141 at 145–46 (1975) [square brackets and ellipses in original], cited in Gianni, above note 2 at 112.2.1.

See Gianni, above note 2 at 112.2.1.

Code, above note 5, § 7602(a)(1).

See Gianni, above note 2 at 112.2.1, noting among other doctrines and defences, the privilege against self-incrimination, claims that a summons is excessively broad or intended to harass a witness, and also the right to counsel.

Code, above note 5, § 7602(a)(2).

Ibid.

See Treasury Regulations, 26 CFR § 301.7602-1(b)(1).

See United States v Stuart, 489 US 353 at 359–60 (1989) [Stuart], affirming the validity of an administrative summons issued by the IRS pursuant to a request by Canadian authorities under Articles XIX and XXI of the Convention between Canada and the United States of America with respect to Taxes on Income and on Capital, 4 March 1942, 56 Stat 1405–1406, TS No 983, regardless of whether or not investigation by CRA was equivalent to a referral to the US Department of Justice under Code, above note 5, § 7602(c), and observing, Stuart, ibid at 356, “So long as the summons meets statutory requirements and is issued in good faith, as we defined that term in United States v Powell, 379 U.S. 48, 379 U.S. 57–58, 14 AFTR 2d 5942 (1964), compliance is required, whether or not the Canadian tax investigation is directed toward criminal prosecution under Canadian law.”

See Barquero v United States, 18 F 3d 1311 at 1314–15 (5th Cir 1994), confirming the IRS authority to issue a summons on behalf of a foreign government with which the United States has signed a TIEA, in support of a request by the competent authority of Mexico to serve IBC Bank a request for all the bank’s records pertaining to a bank account held by a taxpayer, to determine his Mexican tax liability.

See OECD, US Peer Review, above note 16 at 62. But see discussion in Section 3.4, below in this chapter: the IRS is obligated to notify a taxpayer regarding the issuance of a summons to a third party under Code, above note 5, § 7609.

See United States v Powell, 379 US 48 (1964) [Powell]; Stuart, above note 37 at 359.

See Lidas, Inc v United States, 238 F 3d 1076 (9th Cir 2001) at 1082, quoting Stuart, above note 37 at 360: to be entitled to enforcement in this instance, the IRS was not obligated to show the good faith of the requesting nation but, rather, that it was acting in good faith pursuant to Powell, above note 40, and compliant with applicable statutes.

See United States v Abrahams, 905 F 2d 1276 at 1280 (9th Cir 1990) [Abrahams]. This showing is generally made by the submission of a declaration of the IRS agent who issued the summons: see United States v Samuels, Kramer & Co, 712 F 2d 1342 at 1345 (9th Cir 1983) [Samuels, Kramer & Co]; Code, above note 5, §§ 7603 & 7604, which provide rules relating to the service and the enforcement, respectively, of IRS summonses.

See Abrahams, above note 42 at 1280. A party opposing enforcement will have to show that the summons was issued for an improper purpose such as harassing the taxpayer or putting pressure on the taxpayer to settle a collateral dispute: see Powell, above note 40 at 58.

Code, above note 5, § 7602(d).

Ibid, § 7602(d)(2)(A).

See Gianni, above note 2 at 112.2.4, citing United States v Euge, 444 US 707 at 714 (1980). A more limited privilege arises in respect of tax practitioners (ibid).

Code, above note 5, § 7604(a).

Ibid, § 7701(a)(39).

Ibid, § 7210. See also OECD, US Peer Review, above note 16 at 66.

Code, above note 5, § 7203. See also OECD, US Peer Review, above note 16 at 66.

See Gianni, above note 2 at 112.2.9.

See ibid.

See United States, Department of Justice, “U.S. Attorneys’ Manual” (Washington, DC: Department of Justice, 2015) at §§ 6-1.100 & 6-1.110, online: www.justice.gov/usam/united-states-attorneys-manual [USAM].

See ibid.

See United States, HR 10612 — Tax Reform Act, HR Rep No 658 at 307 (1975), reprinted in 1976 USCCAN 2897 at 3203; United States, HR 10612 — Tax Reform Act, S Rep No 938, pt 1 at 368–69 (1976), reprinted in 1976 USCCAN 3439 at 3798. See also Code, above note 5, § 7609(a), regarding notice provisions.

Code, above note 5, § 7609(a)(1).

Ibid, § 7609(b).

See JCT, Enforcement Issues, above note 1 at 44.

USAM, above note 53 at § 6-1.110.

See JCT, Enforcement Issues, above note 1 at 44, noting that courts have tended to give greater weight to the interests of the United States in cases involving criminal activity, such as money laundering or drug dealing, than in cases solely concerned with tax evasion. See also the following cases, which are discussed below: Societe Internationale v Rogers, 357 US 197 (1958) [Societe Internationale]; In re Grand Jury Proceedings, United States v Field, 532 F 2d 404 (5th Cir 1976), cert denied, 429 US 940 (1976) [Field]; United States v Bank of Nova Scotia, 691 F (2d) 1384 (11th Cir 1982), cert denied, 462 US 1119 (1983) [Bank of Nova Scotia].

(1986), § 441(1) [Restatement].

Societe Internationale, above note 60.

Ibid at 199–200.

Ibid at 208–13.

Ibid at 211–13 [footnote omitted].

Field, above note 60 at 405.

Ibid at 405–8.

Ibid at 406.

Ibid.

Ibid at 407.

Ibid [footnote omitted].

Ibid.

Ibid at 409.

Bank of Nova Scotia, above note 60. The bank, ibid at 1386, declined to comply with the document request, asserting that compliance without the customer’s consent or an order of a Bahamian court would violate Bahamian bank secrecy laws and, moreover, would violate due process under Societe Internationale, above note 60, on the rationale that it would be unfair, because of the bank’s lack of purposeful involvement or responsibility in the subject matter, to require a “mere stakeholder” to incur criminal liability in the Bahamas.

Bank of Nova Scotia, above note 60 at 1386.

Ibid.

Ibid at 1387.

Societe Internationale, above note 60; Bank of Nova Scotia, above note 60 at 1388.

Bank of Nova Scotia, above note 60 at 1389. The court noted, ibid at 1388–89, that Societe Internationale, above note 60, held only that dismissal of the plaintiff’s case was not supported where the plaintiff had acted in good faith, was unable to comply due to foreign law, and was nevertheless entitled to a hearing on the merits of the case.

Bank of Nova Scotia, above note 60 at 1389.

Ibid.

Ibid at 1390.

Field, above note 60 at 405–9.

Bank of Nova Scotia, above note 60 at 1390.

Ibid.

Ibid at 1390–91.

Code, above note 5, § 7602(d)(2)(A)(i). See Section 3.3, above in this chapter.

Code, above note 5, § 7206(d); Saltzman & Book, above note 5 at 12.05[4][d][ii].

See, for example, United States v Toyota Motor Corp, 561 F Supp 354 (CD Cal 1983) [Toyota Motor Corp]; In re Grand Jury Proceedings (Bank of Nova Scotia), 740 F 2d 817 at 821 and 832–33 (11th Cir 1984); In re Marc Rich & Co, AG, 736 F 2d 864 at 867 (2d Cir 1984); In re Grand Jury Proceedings (Bank of Nova Scotia), 691 F 2d 1384 at 1385–86 (11th Cir 1982).

USAM, above note 53 at § 9-13.525.

For a further discussion of US summons power, see Richard E Andersen, Analysis of United States Income Tax Treaties (New York: Thomson Reuters, 2003) (online), ch 24; Saltzman & Book, above note 5, ch 13.

See First Nat’l City Bank of NY v IRS, 271 F 2d 616 (2d Cir 1959), cert denied, 361 US 948 (1959), cited in Saltzman & Book, above note 5, ch 13: court held that the bank’s records in a Panama branch were subject to government subpoena and that the bank’s membership in the Federal Reserve System affirmed the bank’s obligations notwithstanding any contravention of Panamanian law.

See Bank of Nova Scotia, above note 60 (see discussion above in this section).

Ibid at 1391.

See Agreement between the Government of the Commonwealth of the Bahamas and the Government of the United States of America for the Provision of Information with respect to Taxes and for Other Matters (25 January 2002, entered into force 31 December 2003), online: www.bahamas.gov.bs/wps/wcm/connect/5661db08-6979-464b-be2e-aef37ae9eab5/US%2BBahamas%2B25%2BJan%2B2002.pdf?MOD=AJPERES. See also The Bahamas and the United States of America Tax Information Exchange Agreement Regulations, c 349B, online: http://laws.bahamas.gov.bs/cms/images/LEGISLATION/SUBORDINATE/2004/2004-0103/TheBahamasandtheUnitedStatesofAmericaTaxInformationExchangeAgreementRegulations_1.pdf.

See Toyota Motor Corp, above note 90. The District Court determined that it had personal jurisdiction over the Japanese parent corporation in an action brought under Code, above note 5, § 7604, to enforce two summonses issued during the course of an audit of the parent’s US subsidiary, observing that “[n]othing in the language of section 7602 precludes issuance of a summons against a foreign parent corporation possessing information relevant to the taxation of its subsidiary” (Toyota Motor Corp, above note 90 at 83-1149). Having found that Code, above note 5, §§ 7402(b) and 7604(a) conferred jurisdiction over the case, the court in Toyota Motor Corp, above note 90 at 83-1150, proceeded to examine due process limitations on jurisdiction under the constitution: see also United States v Toyota Motor Corp, 569 F Supp 1158 at 1163 (CD Cal 1983), cited in Saltzman & Book, above note 5, ch 13: District Court ordered an IRS summons for documents located in Japan to be partially enforced.

691 F 2d 1281 (9th Cir 1981) [Vetco].

Ibid at 81-1547.

100

Ibid. See Restatement, above note 61, § 441(1). But see United States v First National Bank of Chicago, 699 F 2d 341 (7th Cir 1983), cited in Saltzman & Book, above note 5, ch 13: Court of Appeals for the Seventh Circuit denied enforcement of an IRS summons for bank records in Greece.

101

See United States v McNulty, 446 F Supp 90 (ND Cal 1978), cited in Saltzman & Book, above note 5, ch 13.

102

See United States v First National City Bank, 379 US 378 (1965), cited in Saltzman & Book, above note 5, ch 13.

103

See, for example, Doe v United States, 487 US 201 at 215–18 (1988).

104

28 USC §§ 1783–84.

105

Bank of Nova Scotia, above note 60.

106

Code, above note 5, § 7602. See United States v LaSalle National Bank, 437 US 298 (1978).

107

See JCT, Enforcement Issues, above note 1 at 48.

108

Ibid at 49.

109

Ibid.

110

See Scott D Michel, Zhanna A Ziering, & Young Ran Kim, “Offshore Account Enforcement Issues” (2014) 16 Journal of Tax Practice and Procedure 49 at 74.

111

See ibid.

112

See United States, Department of Justice, Tax Division, News Release 13-488 “Court Authorizes Service of John Doe Summons Seeking the Identities of U.S. Taxpayers with Offshore Accounts at Canadian Imperial Bank of Commerce’s FirstCaribbean International Bank” (30 April 2013), online: www.justice.gov/opa/pr/court-authorizes-service-john-doe-summons-seeking-identities-us-taxpayers-offshore-accounts [Service of John Doe Summons News Release].

113

See Code, above note 5, § 7609(h).

114

Ibid, § 7609(f).

115

See JCT, Enforcement Issues, above note 1 at 48; Samuels, Kramer & Co, above note 42; Powell, above note 40.

116

See Michel, Ziering, & Kim, above note 110 at 7; Bank of Nova Scotia, above note 60.

117

See Marie Therese Yates et al, “Death of Information-Exchange Agreements? Part 3” (2011) 22 Journal of International Taxation 48 at 61, citing Vetco, above note 98 at 1286.

118

See Section 3.2, above in this chapter.

119

Code, above note 5, § 982(a).

120

Ibid, §§ 6038A, 6038C, and 1446, and the regulations thereunder.

121

Ibid, §§ 6038A(e), 6038C(d), and 6020(b).

122

Ibid, § 7456(b). See also Hongkong and Shanghai Banking Corp v Commissioner, 85 TC 701 (1985).

123

Code, above note 5, § 7456(b).

124

See, for example, the following treatises, which do not currently list criminal prosecution as a means to access foreign-based taxpayer information: Saltzman & Book, above note 5 at 4.06, Gianni, above note 2; Andersen, above note 92, ch 24.

125

See Lynnley Browning, “Swiss Agree on Penalties for Banks That Aided Tax Cheats” New York Times (29 August 2013) B2, online: http://dealbook.nytimes.com/2013/08/29/u-s-and-switzerland-reach-deal-on-bank-penalties/?_r=0. Since 2009, the United States has prosecuted more than thirty banking professionals and sixty-eight US account holders, including the deferred prosecution agreement with one Swiss bank and the indictment of another Swiss bank: see United States, Department of Justice, News Release 13-975 “United States and Switzerland Issue Joint Statement regarding Tax Evasion Investigations” (29 August 2013), online: www.justice.gov/opa/pr/2013/August/13-tax-975.html [DOJ News Release re Tax Evasion Investigations].

126

See DOJ News Release re Tax Evasion Investigations, above note 125.

127

See United States of America v UBS AG, 09-60033-CR-COHN (SD Fl) [UBS DPA].

128

See ibid at 1.

129

See ibid at 3.

130

See Baker & McKenzie Voluntary Disclosure Steering Committee, “Undeclared Money Held Offshore: U.S. Voluntary Compliance Programs” (Part 2) (2010) 21 Journal of International Taxation 36 at 46.

131

See UBS DPA, above note 127 at 2. UBS actively assisted US individual taxpayers to establish accounts at UBS in ways designed to conceal the individuals’ ownership or beneficial interests in these accounts, including by creating offshore companies. As a result of the efforts of UBS’s private bankers and managers, US taxpayers were able to evade US reporting requirements and engage in securities trading and other financial transactions such as using credit or debit cards linked to the offshore corporate accounts (ibid).

132

See Chapter 2, Section 2.2.

133

Both Canada and the United States recognize the right of other countries to impose tax on investment-type income arising within the source state generally under the Income Tax Act, RSC 1985, c 1 (5th Supp) [Act], and the Code by providing a foreign tax credit mechanism to reduce double taxation and through the use of their extensive treaty networks: see Chapter 2, Section 2.2.

134

The taxation of foreign persons and corporations on a gross withholding basis turns in part on whether or not the income is domestic sourced as opposed to foreign sourced. For example, regarding the sourcing rules under the Act, above note 133, see Part XIII, and regarding the sourcing rules under the Code, above note 5, see §§ 861–865. The character of the income (e.g., dividends, interest, or royalties) must also be determined as not only may different domestic tax rules apply but, depending on the characterization of the income, different treaty provisions may apply. For example, under US jurisprudence, interest has been broadly defined by the courts as representing the cost of using borrowed money, the amount that one has contracted to pay for the use of borrowed money, compensation for the use or forbearance of money, and the equivalent of rent for the use of funds: see, for example, Snyder v Commissioner, 93 TC 529 at 546 (1989). For a general discussion of the source and characterization rules pertaining to passive investment income under Canadian and US tax law, see David S Kerzner, Vitaly Timokhov, & David W Chodikoff, eds, The Tax Advisor’s Guide to the Canada–U.S. Tax Treaty (Toronto: Thomson Reuters Carswell, 2008) (loose-leaf) ch 10, 11, & 12.

135

Code, above note 5, §§ 871(b) and 882(a).

136

Under ibid, §§ 871(a) and 881(a), a 30 percent tax is applied to FDAP income of non-resident aliens and foreign corporations.

137

See ibid, reg §§ 1.1441-6(a) and 1.1441-1(b), relating to certificate requirements.

138

See ibid, §§ 1441 & 1442, requiring withholding at the source for payments to non-resident aliens and foreign corporations respectively; ibid, § 7701(a)(16), defining withholding agent for purposes of § 1442. The 30 percent tax on FDAP income is to be withheld by the withholding agent under the complex rules under §§ 1441 & 1442 and the regulations thereunder. Special withholding rules also apply under § 1445 for withholding in connection with § 897 (Foreign Investment in Real Property Tax Act) and under § 1446 for certain payments to foreign partners. For a detailed description of the US withholding tax regime, see Carol P Tello, U.S. Withholding and Reporting Requirements for Payments of U.S. Source Income to Foreign Persons (Washington, DC: Tax Management, 2002); Marnin Michaels, International Taxation: Withholding (Thomson Reuters/WG&L, 2011/2012 ed) (Checkpoint).

139

See, generally, Code, above note 5, §§ 6041, 6042, 6045, 6049, 6050N, and the regulations thereunder. See also United States, Internal Revenue Service, Withholding of Tax on Nonresident Aliens and Foreign Entities (Publication 515) (Washington, DC: US Treasury, 2015), online: www.irs.gov/pub/irs-pdf/p515.pdf [IRS, Withholding of Tax].

140

See IRS, Withholding of Tax, above note 139.

141

See ibid.

142

See ibid.

143

The beneficial owner in the context of the withholding rules is defined as the person who is the owner of the income for tax purposes and who beneficially owns that income: see Code, above note 5, reg § 1.1441-1(c)(6). For a discussion of the legal concept of beneficial ownership as it relates to the true owner of investment income for Canadian withholding tax purposes, see Prévost Car Inc v R, 2008 TCC 231, aff’d 2009 FCA 57 (sub nom R v Prévost Car Inc; MNR v Prévost Car Inc); Velcro Canada Inc v Canada, 2012 TCC 57, additional reasons 2012 TCC 273.

144

Code, above note 5, reg § 1.1441-1(c)(6).

145

Ibid.

146

Ibid.

147

See ibid, §§ 871(i) and 881(d). See also ibid, §§ 1441(c)(10) and 1442(a).

148

In 1984, Congress repealed the 30 percent withholding tax imposed by Code, ibid, §§ 871 and 881 with respect to certain US sourced interest paid on portfolio debt, referred to as “portfolio interest”: see United States, Joint Committee on Taxation, General Explanation of the Revenue Provisions of the Deficit Reduction Act of 1984 (Washington, DC: Joint Committee on Taxation, 1984) at 391–92, online: www.jct.gov/publications.html?func=startdown&id=3343. Congress feared a US withholding tax could impair the ability of US corporations to raise capital in the Eurobond market. See also Peter E Pront & Roger M Zaitzeff, “Repeal of the United States Withholding Tax on Interest Paid to Foreigners” (2012) 3 Berkeley Journal of International Law Article 1. Portfolio interest generally refers to interest payments made to a non-resident alien or individual or foreign corporation (owning less than 10 percent of the payor entity) pursuant to certain debt obligations (either in bearer form or registered form) that are sold exclusively to non-US persons. The portfolio interest exemption rules contain various formalities that are designed to prevent the debt obligations from being held by US persons: see Code, above note 5, §§ 871(h), 881(c), and 163(f)(2)(B). See also ibid, §§ 1441(c)(9) and 1442(a).

149

For example, a 39.6 percent federal rate: see Luke Landes, “Updated: 2013 Federal Income Tax Brackets and Marginal Rates” Forbes (5 January 2013), online: www.forbes.com/sites/moneybuilder/2013/01/05/updated-2013-federal-income-tax-brackets-and-marginal-rates/.

150

See Marshall J Langer, “Harmful Tax Competition: Who Are the Real Tax Havens?” (2000) Tax Notes International 2831. Langer, ibid at 2834, notes that for many years the instructions to Form 1042-S required banks to identify and report only Canadian holders of accounts, but not other foreign persons. See also Code, above note 5, § 6103.

151

Enacted by Congress as part of the Hiring Incentives to Restore Employment (HIRE) Act, Public Law 111-147, and signed into law by the president on 18 March 2010 [FATCA].

152

See Section 2, above in this chapter; Langer, above note 150.

153

See Langer, above note 150 at 2831.

154

Ibid at 2834.

155

Ibid at 2837. Foreign-held US bank deposits are also exempt from US estate tax: see Code, above note 5, § 2105(b)(1). Langer, above note 150, also points out that residents of Japan and Ireland have set up fraudulent schemes to benefit from interest exemption programs for non-residents in their respective countries.

156

Langer, above note 150.

157

See United States, Joint Committee on Taxation, Description of Revenue Provisions Contained in the President’s Fiscal Year 2010 Budget Proposal: Part Three — Provisions related to the Taxation of Cross-border Income and Investment (Washington, DC: Joint Committee on Taxation, 2009) at 150–86, online: www.jct.gov/publications.html?func=startdown&id=3579 [JCT, Taxation of Cross-border Income and Investments]: US custodians were exposed to a substantial risk of withholding tax liability that might exceed their custodial business profits and that stemmed from their inability to know whether the beneficial owner of a payment was a US person (and hence subject to backup withholding without a Form W-9), or whether such a person was a foreign person entitled to treaty benefits. For a discussion of the prior withholding regulations, see ABA Tax Section Committee on US Activities of Foreigners and Tax Treaties, “Report on Consolidating and Simplifying the Withholding Rules and Procedures under Sections 1441 through 1446” (1994) 47 Tax Law 425.

158

See United States, Internal Revenue Service, Announcement 2000-48 “Supplemental Information on Revenue Procedure 2000-12 for Prospective Qualified Intermediaries” (Washington, DC: US Treasury, 2000), online: www.irs.gov/pub/irs-drop/a-00-48.pdf: the foundation for permitting this self-regulation was the confidence that the Department of the Treasury and the IRS had at the time in the know-your-customer rules existing in applicable jurisdictions. To date, approximately 7,000 FFIs have entered into QI agreements: see United States, Permanent Subcommittee on Investigations, Committee on Homeland Security and Governmental Affairs, Tax Haven Banks and U.S. Tax Compliance (Washington, DC: Committee on Homeland Security and Governmental Affairs, 2008) at 25, online: www.hsgac.senate.gov/download/report-psi-staff-report-tax-haven-banks-and-us-tax-compliance-july-17-2008 [2008 Tax Haven Report].

159

See 2008 Tax Haven Report, above note 158 at 22.

160

See Itai Grinberg, “The Battle over Taxing Offshore Accounts” (2012) 60 UCLA Law Review 304 at 325.

161

See United States, Internal Revenue Service, Revenue Procedure 2000-12 (2000-4 IRB 387) “Application Procedures for Qualified Intermediary Status under Section 1441; Final Qualified Intermediary Withholding Agreement” (Washington, DC: US Treasury, 2000), online: www.irs.gov/pub/irs-drop/rp-00-12.pdf [Rev Proc 2000-12]; Code, above note 5, reg § 1.1441-1ff.

162

See Rev Proc 2000-12, above note 161: some of the components of the agreement are “Section 1. Purpose and Scope,” “Section 2. Definitions,” “Section 3. Withholding Responsibility,” “Section 4. Private Arrangement Intermediaries,” “Section 4A. Special Rules for Related Partnership and Related Trusts,” “Section 5. Documentation Requirements,” “Section 6. Qualified Intermediary Withholding Certificate and Disclosure of Account Holders to Withholding Agent,” “Section 7. Tax Return Obligations,” “Section 8. Information Reporting Obligations,” “Section 9. Adjustments for Over- and Under-withholding; Refunds,” “Section 10. External Audit Procedures,” “Section 11. Expiration, Termination and Default,” and “Section 12. Miscellaneous Provisions.”

See ibid.

See ibid.

See ibid.

See ibid.

See ibid. Accounts not designated by the FFI as QI accounts are subject to the reporting of individual client names to the US financial institution, which in turn reports and remits taxes to the IRS. The QI program also contains auditing procedures using third-party auditors.

168

See 2008 Tax Haven Report, above note 158 at 23.

169

See ibid at 25.

170

United States, Government Accountability Office, Report to the Committee on Finance, U.S. Senate: Tax Compliance — Qualified Intermediary Program Provides Some

Assurance That Taxes on Foreign Investors Are Withheld and Reported,

but Can Be Improved (GAO-08-99 ) (Washington, DC: Government Accountability Office, 2008), online: www.gao.gov/assets/280/270593.html.

171

Ibid at Highlights and 3.

172

LGT Group (online: www.lgt.com/en/lgt-group/) is the wealth and asset management group of the princely House of Liechtenstein and is the largest family-owned private wealth and asset manager in Europe, wholly owned by the Prince of Liechtenstein Foundation. LGT Group is headquartered in Liechtenstein and has approximately thirty-one offices in Asia, Europe, the Middle East, North America, and South America.

173

See 2008 Tax Haven Report, above note 158 at 9.

See ibid.

See ibid.

See ibid.

Quoted in ibid at 10.

178

See ibid.

179

See ibid at 11. The 2008 Tax Haven Report, ibid, noted that while these actions may not have been per se violations of the QI program, they were aimed at circumventing its purpose, resulting in tax evasion by UBS’s US clients.

180

See ibid at 5. See also ibid at 5–8, for a description of assets hidden in the bank by some of its US clients, for example, Marsh accounts ($49 million).

181

Ibid at 16. Both UBS and LGT Bank would rely on a Form W-8BEN offered by a foreign nominee for certification of non-US status notwithstanding that the banks knew that the beneficial owners were US citizens as a result of information obtained through their internal KYC rules: see JCT, Taxation of Cross-border Income and Investments, above note 157 at 167.

182

2008 Tax Haven Report, above note 158 at 16. Under the existing requirement, the obligation to file a Form 1099 applied only if the account held US securities.

183

Ibid at 17.

184

Signed at Washington, 2 October 1996, together with a Protocol to the Convention, 2 October 1996, S Treaty Doc No 105-8 (entered into force 19 December 1997) at Art 26, online: www.irs.gov/pub/irs-trty/swiss.pdf [US–Switzerland Tax Treaty].

185

5 May 1997, Can TS 1998 No 15 (entered into force 21 April 1998) at Art 25, online: www.fin.gc.ca/treaties-conventions/switzerland-suisse-eng.asp [Canada–Switzerland Tax Treaty]:

The competent authorities of the Contracting States shall exchange such information (being information which is at their disposal under their respective taxation laws in the normal course of administration) as is necessary for carrying out the provisions of this Convention concerning taxes covered by the Convention. Any information so exchanged shall be treated as secret and shall not be disclosed to any persons other than those concerned with the assessment and collection of the taxes covered by the Convention. No information as aforesaid shall be exchanged which would disclose any trade, business, industrial or professional secret or trade process.

In no case shall the provisions of this Article be construed so as to impose on a Contracting State the obligation to carry out administrative measures at variance with the regulations and practice of that or the other Contracting State or which would be contrary to its sovereignty, security or public policy or to supply particulars which are not obtainable under its own legislation or that of the State making application.

The treaty contained a “minor information clause,” which limited EOI to that “necessary” for carrying out the terms of the treaty itself, rather than for the administration or enforcement of the requesting state’s domestic tax laws: see Gilles Larin & Alexandra Diebel, “The Swiss Twist: The Exchange-of-Information Provisions of the Canada–Switzerland Protocol” (2012) 60 Canadian Tax Journal 1. Canada’s new protocol with Switzerland was signed on 22 October 2010 and entered into force on 16 December 2011 (ibid at 15). The new protocol allows for requests for the purposes of the administration or enforcement of domestic laws but is limited to taxes covered by the treaty (so requests relating to the enforcement of the goods and services tax are excluded) (ibid at 20). Switzerland has also agreed to permit Canada to make requests, which are clearly not fishing expeditions, that identify a person using means other than the person’s name and address (ibid at 38–40).

186

See United States v UBS AG, 09-20423 MC-GOLD (SD Fl 19 February 2009) (Amicus Brief of Government of Switzerland), petition to enforce John Doe summons at 7, citing Bilateral Tax Treaties and Protocol: Hearing before the Committee on Foreign Relations, 105th Cong 43–44 (1977) (statement of Kenneth J Kies, chief of staff, Joint Committee on Taxation), online: www.bj.admin.ch/dam/data/bj/wirtschaft/fallubs/amicus-brief-e.pdf.

187

US–Switzerland Tax Treaty, above note 184 at Art 26.

188

See Larin & Diebel, above note 185 at 12–13.

189

See ibid.

190

See concerns of IRS Commissioner Barry Shott, noted below in this section.

191

See United States, Congress, Joint Committee on Taxation, Explanation of Proposed Protocol to the Income Tax Treaty between the United States and Switzerland (Washington, DC: Joint Committee on Taxation, 2011) at 23, online: www.jct.gov/publications.html?func=startdown&id=3791 [JCT, Proposed Swiss Protocol].

192

US–Switzerland Tax Treaty, above note 184, Protocol at para 10.

193

See Mutual Agreement of January 23, 2003, regarding the Administration of Article 26 (Exchange of Information) of the Swiss–U.S. Income Tax Convention of October 2, 1996, online: www.treasury.gov/press-center/press-releases/Pages/mutual.aspx [Mutual Agreement re Article 26]; JCT, Proposed Swiss Protocol, above note 191 at 23.

194

See Mutual Agreement re Article 26, above note 193 at para 1.

195

See JCT, Proposed Swiss Protocol, above note 191 at 34.

196

See Section 4.4, below in this chapter.

197

See United States v UBS AG, above note 186 at 9; Switzerland, Federal Department of Finance, “Switzerland to Adopt OECD Standard on Administrative Assistance in Fiscal Matters” (13 March 2009), online: www.news.admin.ch/message/?lang=en&msg-id=25863.

198

See United States, Senate, Treaty Doc 112-1, Protocol Amending Tax Convention with Swiss Confederation (26 January 2011), online: www.congress.gov/treaty-document/112th-congress/1/document-text; JCT, Proposed Swiss Protocol, above note 191. As of February 2016, the protocol had not been ratified by the United States. One area of concern regarding the proposed protocol is the Swiss position on requests that do not name the taxpayer, such as in the context of the UBS case and the John Doe summons, and whether other means of identification will be admissible in the future or whether a more litigious pathway will be required (ibid at 35). See also OECD, Model Tax Convention on Income and on Capital (OECD: Paris, 2010), online: www.oecd.org/tax/treaties/47213736.pdf [Model Tax Treaty].

199

See UBS DPA, above note 127 at 10. Additionally, under the UBS DPA, ibid, UBS agreed to waive indictment and all rights to a speedy trial pursuant to the Sixth Amendment to the Constitution, USC tit 18 § 3161, and Federal rule of criminal procedure 48(b). See also Lynnley Browning, “I.R.S. to Drop Suit against UBS over Tax Havens” New York Times (26 August 2010) B6, online: http://nyti.ms/1TxGYwW.

200

See UBS DPA, above note 127 at 9.

201

See ibid. See also William P Barrett & Janet Novack, “52,000 Had Secret UBS Accounts” Forbes (19 February 2009), online: www.forbes.com/2009/02/19/ubs-fraud-offshore-personal_finance-taxes_ubs.html; United States, Department of Justice, “United States Asks Court to Enforce Summons for UBS Swiss Bank Account Records” (19 February 2009), online: www.justice.gov/opa/pr/united-states-asks-court-enforce-summons-ubs-swiss-bank-account-records.

202

JCT, Proposed Swiss Protocol, above note 191 at 26. As part of the UBS DPA, above note 127, UBS was permitted by the Swiss banking regulators to transfer under Swiss law approximately 250 names of US clients suspected of fraudulent conduct: see JCT, Proposed Swiss Protocol, above note 191 at 26, n 19, citing Lee Sheppard, “Don’t Ask, Don’t Tell, Part III: UBS’s Sweet Deal” Tax Notes (2 March 2009) at 1050.

203

See Barrett & Novack, above note 201, quoting IRS agent Daniel Reeves: the IRS had formally asked the Swiss government for information relating to tax enforcement under the treaty, but no records had been produced in response to this request.

204

See ibid: the names of these US account holders were provided on US records and identified Americans who had wired funds from the United States to Switzerland.

205

See Anand Sithian, “‘But the Americans Made Me Do It!’: How United States v. UBS Makes the Case for Executive Exhaustion” (2011) 25 Emory International Law Review 681.

206

See US–Switzerland Tax Treaty, above note 184; declaration of Barry B Shott in United States v UBS AG, above note 186 at 5.

207

Declaration of Barry B Shott in United States v UBS AG, above note 186 at 5. As noted above, Switzerland relied on a narrower interpretation of tax fraud under its domestic law notwithstanding its understandings with the United States, which expressly authorized EOI in scenarios giving rise to a broader interpretation of tax fraud that encompassed tax evasion.

Ibid.

See ibid at 6.

See ibid.

Ibid.

Declaration of Barry B Shott in In the Matter of the Tax Liabilities of: John Does, 08-21864 (SD Fla 1 July 2008) at 5, online: www.justice.gov/tax/BShott_Decl_UBS_AG.pdf.

213

See Lynnley Browning, “Swiss Ruling Jeopardizes Deal for UBS Clients’ Names” New York Times (23 January 2010) B2, online: http://nyti.ms/1LamsRO. See also Agreement between the United States of America and the Swiss Confederation on the Request for Information from the Internal Revenue Service of the United States of America regarding UBS AG, a Corporation Established under the Laws of the Swiss Confederation (19 August 2009), online: www.irs.gov/pub/irs-drop/us-swiss_government_agreement.pdf [UBS Agreement].

214

UBS Agreement, above note 213, at Art 1. Under Art 2, ibid, the United States agreed to withdraw its enforcement action.

215

For a description of the legal challenges involved in the transfer of UBS account data to the United States, see Mathew Allen, “Legal Challenge to UBS Data Handover Fading” swissinfo.ch (7 November 2011), online: www.swissinfo.ch/eng/Specials/Rebuilding_the_financial_sector/Spotlight_on_banking_secrecy/Legal_challenge_to_UBS_data_handover_fading.html?cid=31510472.

216

See Reed Albergotti, “Wegelin’s Fall to Tax-Haven Poster Child” Wall Street Journal (4 March 2013), online: http://on.wsj.com/ZToCck.

217

See Robert W Wood, “With Indictments, IRS Will Get More Data from Swiss” Forbes (4 February 2012), online: www.forbes.com/sites/robertwood/2012/02/04/with-indictments-irs-will-get-more-data-from-swiss/.

218

See Nate Raymond, “Update 2 — Swiss Bank Wegelin to Pay $58 Million in US Tax Evasion Case” Reuters (4 March 2012), online: http://reut.rs/WrLXV7.

219

See Halah Touryalai, “Tale of Two Swiss Banks: Why Wegelin Failed and UBS Survived Tax Evasion Charges” Forbes (4 January 2013), online: www.forbes.com/sites/halahtouryalai/2013/01/04/tale-of-two-swiss-banks-why-wegelin-failed-and-ubs-survived-tax-evasion-charges/. From 2002 through 2011, Wegelin conspired with US taxpayers to hide from the IRS both the existence of their bank accounts held in Switzerland and the income generated from those accounts. In addition, Wegelin at the height of the UBS scandal actively pursued undeclared UBS account holders exiting the latter bank and seeking a haven from the IRS: see United States, Department of Justice, News Release 13-002 “Swiss Bank Pleads Guilty in Manhattan Federal Court to Conspiracy to Evade Taxes” (3 January 2013), online: www.justice.gov/usao/nys/pressreleases/January13/WegelinPleaPR.php.

220

See Touryalai, above note 219.

221

See ibid, noting that in the recent Libor-rigging scandal, Barclays paid approximately $450 million to settle charges but also obtained a non-prosecution agreement and that UBS paid $1.5 billion over Libor rigging and also obtained a non-prosecution agreement.

222

See United States, Department of Justice, News Release 13-033 “Court Authorizes IRS to Seek Records from UBS relating to U.S. Taxpayers with Swiss Bank Accounts” (28 January 2013), online: www.justice.gov/usao/nys/pressreleases/January13/WegelinSummonsPR.php: the summons seeks records of Wegelin’s US correspondent account at UBS, to enable the IRS to determine the identity of the US taxpayers who hold or held interests in accounts at Wegelin and possibly other Swiss banks that used the correspondent account.

223

Wood, above note 217.

224

See Andrew Grossman, John Letzing, & Devlin Barrett, “Credit Suisse Pleads Guilty in Criminal Tax Case” Wall Street Journal (19 May 2014), online: http://on.wsj.com/Sad4mI.

225

See ibid. Under the settlement, $100 million will go to the Federal Reserve, more than $715 million will go to the New York State Department of Financial Services, and $1.8 billion will go to the Department of Justice (ibid). Senator Carl Levin criticized the settlement for not requiring the bank to “cough up” some of the names of those holding undeclared Swiss bank accounts (ibid).

226

Banks under investigation included Basler Kantonalbank, Credit Suisse, Julius Baer, Neue Zürcher Bank, Pictet, and Zürcher Kantonalbank: see John Letzing, “Swiss Banks Near Deal on U.S. Tax Cheats” Wall Street Journal (11 July 2013), online: http://on.wsj.com/12kJPMD. Credit Suisse is Switzerland’s second-largest bank by assets (ibid).

227

See ibid.

228

See ibid. See also DOJ News Release re Tax Evasion Investigations, above note 125.

229

See Economist, “Tackling Tax Evasion: America the Not So Brave” Economist (23 May 2015), online: http://econ.st/1BdD1BS.

230

See John Letzing, “Swiss Banks Use Carrot and Stick in Addressing Hidden Accounts” Wall Street Journal (18 July 2014), online: http://on.wsj.com/1pleN3b.

231

See United States & Switzerland, “Joint Statement between the U.S. Department of Justice and the Swiss Federal Department of Finance” (29 August 2013), online: www.justice.gov/iso/opa/resources/8592013829164213235599.pdf; United States, Department of Justice, “Program for Non-prosecution Agreements or Non-target Letters for Swiss Banks” (29 August 2013), online: www.justice.gov/iso/opa/resources/8592013829164213235599.pdf [“Swiss Bank Program”].

232

See “Swiss Bank Program,” above note 231, Part II, which classifies a bank as a Category 2 bank if it is not a Category 4 bank and if it has reason to believe that it may have committed tax-related offences under USC tit 18, Crimes and Criminal Procedure [Title 18], or the Code, above note 5, or monetary transactions offences under the Bank Secrecy Act, USC tit 31 §§ 5314 or 5322 [Bank Secrecy Act], in connection with certain undeclared US related accounts held by the Swiss bank during the applicable periods described in the program.

233

See “Swiss Bank Program,” above note 231, Part III, which classifies a bank as a Category 3 bank if it is not a Category 4 bank and if it has not committed any tax-related offences under Title 18, above note 232, or the Code, above note 5, or monetary transactions offences under the Bank Secrecy Act, above note 232, §§ 5314 or 5322, in connection with certain undeclared US related accounts held by the Swiss bank during the applicable periods described in the program; “Swiss Bank Program,” above note 231, Part IV, which classifies a bank as a Category 4 bank if it meets certain prescribed requirements and is a financial institution with a local client base.

234

See “Swiss Bank Program,” above note 231, for program details, including information-sharing obligations, a description of the penalty regime, and application of the 20, 30, and 50 percent penalty categories. For additional detailed requirements relating to Category 2 banks, see United States, Department of Justice, Tax Division, “The Tax Division’s Further Comments about the Program for Non-prosecution Agreements or Non-target Letters for Swiss Banks” (5 June 2014), online: www.justice.gov/sites/default/files/tax/legacy/2014/06/05/Further_Comments_on_Program_for_NonProsecution_Agreements_NonTarget_Letters_ for_Swiss_Banks.pdf.

235

For a list of the seventy-eight Swiss banks with the accompanying non-prosecution agreements and statements of facts, see United States, Department of Justice, Tax Division, “Non-prosecution Agreements Executed under the Swiss Bank Program,” online: www.justice.gov/tax/swiss-bank-program.

236

Title 18, above note 232; Code, above note 5; Bank Secrecy Act, above note 232. For an example of the terms of a non-prosecution agreement entered into by the Department of Justice, see United States, Department of Justice, Tax Division, “Banque Bonhôte & Cie SA, Department of Justice Swiss Bank Program — Category 2, Non-prosecution Agreement” (28 October 2015), online: www.justice.gov/opa/file/790411/download, describing, among other numerous and complex details, the agreement to pay millions of dollars in penalties and cooperate with the Department of Justice in any criminal tax investigations of and proceedings against US undeclared account holders.

237

See Model Tax Treaty, above note 198 at Art 26.

Kristoffersson, Eleonor et al, eds. Tax Secrecy and Tax Transparency: The Relevance of Confidentiality in Tax Law, Part 1 and Part 2 (Frankfurt am Main: PL Academic Research, 2013).

Larin, Gilles, & Alexandra Diebel. “The Swiss Twist: The Exchange-of-Information Provisions of the Canada–Switzerland Protocol” (2012) 60 Canadian Tax Journal 1.

Schenk-Geers, Tonny. International Exchange of Information and the Protection of Taxpayers, (Alphen aan den Rijn, NL: Kluwer Law International, 2009).

Titel: International Tax Enforcement in the United States
verfasst von: David S. Kerzner
David W. Chodikoff
Verlag: Springer International Publishing
Buch: International Tax Evasion in the Global Information Age
Print ISBN: 978-3-319-40420-2

Electronic ISBN: 978-3-319-40421-9

Copyright-Jahr: 2016
DOI: https://doi.org/10.1007/978-3-319-40421-9_5

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