June 30, 2009

Swiss Banks Shun Americans as U.S. Compels Disclosure

By Warren Giles

June 29 (Bloomberg) -- Swiss banks are shutting the accounts of Americans as the U.S. Internal Revenue Service accelerates the hunt for tax dodgers.

UBS AG and Credit Suisse Group AG, the country's biggest banks, have told Americans to move their money into specially created units registered in the U.S., or lose their accounts. Smaller private banks such as Geneva-based Mirabaud & Cie. are closing all accounts held by U.S. taxpayers.

While the banks declined to say how many people are affected, more than 5 million Americans live abroad, including about 30,000 in Switzerland, according to estimates from American Citizens Abroad in Geneva. Swiss banks must register with the Securities and Exchange Commission to provide services for those customers.

"My bank doesn't want to do that, so we wouldn't accept an investment account for a U.S. person," said Pierre Mirabaud, chairman of Mirabaud & Cie. and the Swiss Bankers Association, during a lunch at the American International Club of Geneva.

SEC registration means clients don't enjoy the protection of Swiss banking secrecy laws, which make it a crime for money managers to disclose the names of clients without their consent. Switzerland said in March it would cooperate with international tax evasion probes after Zurich-based UBS admitted helping U.S. clients avoid taxes.

The IRS has since increased pressure on Americans to disclose offshore accounts as it seeks to recoup an estimated $50 billion in unpaid taxes. The agency set a deadline of Sept. 23 for taxpayers to declare all foreign accounts or face possible criminal prosecution that could result in as much as 10 years in prison and $500,000 in penalties.

'Typhoid Mary'

The U.S. has also proposed increasing reporting and oversight requirements for so-called qualified intermediaries -- foreign banks that withhold taxes on behalf of the IRS. That may increase the cost of compliance and the risk of violating U.S. laws, said Charles C. Adams, managing partner at the law firm Hogan & Hartson LLP in Geneva.

"American citizens are starting to feel like they're Typhoid Mary," said Adams who hosted a 2008 fundraiser for Barack Obama that featured actor George Clooney. "The Swiss simply don't want American customers because it requires so much infrastructure and hassle that they don't make any money."

Sandra Dysli, an American who has lived in Geneva for 40 years, said Bank Zweiplus AG, the Zurich-based joint venture of Basel-based Bank Sarasin & Cie. and AIG Private Bank, and a Geneva branch of Raiffeisen International Bank-Holding AG refused to open investment accounts for her.

"I was told that I cannot legally be a client because I'm an American," said Dysli, who retired from the United Nations in 2001. "I couldn't get an investment account and had everything in cash."

45-Day Notice

UBS said last July it planned to stop all offshore banking and investment services for people subject to U.S. taxes, except through U.S.-registered units.

The company notified U.S. clients in a March 27 letter that it would close accounts within 45 days. Customers were asked to transfer assets to entities registered with the SEC, and asked to consult an adviser about the U.S. tax consequences, according to a copy of the seven-page letter seen by Bloomberg News.

"UBS will no longer be able to continue to provide services to you through your current account," the letter said.

A spokesman for UBS, Dominique Gerster, declined to comment on how much progress the bank had made in moving U.S. clients or closing their accounts.

"We offer domestic and international wealth management services in compliance with all applicable laws, regulations, and policies," said Jan Vonder Muehll, a Zurich-based spokesman for Credit Suisse.

'Prudent' Banks

Mirabaud is closing the "few remaining" accounts held by Americans, a company spokesman said, without providing additional details.

"We have to be prudent," Pierre Mirabaud said during last month's lunch at the American International Club. "There is absolutely no problem for U.S. persons to open an account in Switzerland as long as they are prepared" to sign a form that gives the bank the details it needs to report to the IRS.

Bank Sarasin offers U.S. expatriates investment and asset management advice only through its SEC-registered unit in London.

"It's up to individual banks to work out which citizens it wants to do business with," said James Nason, a spokesman for the Basel-based Swiss Bankers Association. "The reporting obligations certainly aren't going to go down as the IRS is considering extending the QI, exporting its tax laws and trying to turn Swiss banks into agents of the IRS."

Congressional Questions

Two members of the U.S. Congress, Carolyn Maloney and Joe Wilson, wrote a May 27 letter to Treasury Secretary Timothy Geithner saying that if the QI requirements are extended to cash or deposit accounts, "taxpaying Americans living abroad will have no place to bank."

"If neither foreign nor American banks will take American customers, how will the millions of citizens living abroad bank?" wrote Maloney, a New York Democrat, and Wilson, a South Carolina Republican, who are co-chairmen of the Americans Abroad Caucus.

There is "massive" failure by U.S. citizens and green card holders overseas to make filings with the IRS, said Matthew Ledvina, an international tax lawyer in Zurich, adding that Americans have become "pariahs because they're risky."

Presumption of Guilt

U.S. citizens must file tax returns, report offshore accounts that contain more than $10,000 and pay tax on any income earned, no matter where they live. To take advantage of the amnesty program, taxpayers must file six years of returns, plus pay back taxes and a penalty, according to the IRS.

"The presumption is that you're a bad person avoiding taxes if you live overseas," according to Andy Sundberg, who founded Geneva-based American Citizens Abroad in 1978. "The IRS rhetoric is alienating and vindictive."

The deadline and the UBS case have been the catalyst for a stream of Swiss banking clients who are seeking help to ensure they comply with U.S. tax rules, said Milan Patel, a former IRS litigator turned tax lawyer at Geneva-based Withers LLP. That includes "accidental Americans," such as green card holders who live outside the U.S., he said.

"People come in asking, 'How much am I going to have to pay?'" Patel said. "The real goal for voluntary disclosure isn't about how much is it going to cost, but avoiding going to jail. The only legal option is voluntary disclosure."

To contact the reporter on this story: Warren Giles in Geneva at wgiles@bloomberg.net

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