As reported by the RTS, category 2 banks, banks that are not already under investigation by the US Department of Justice (DoJ) but have reason to believe that they have committed tax-related offenses, have received their Non-Prosecution Agreement Draft. This is a new step in the tax dispute between the Swiss banks and the DoJ. This text allows category 2 banks who sign to avoid any legal action provided they deliver all the data requested by the DoJ. The set of data includes the customer relationships, the strategy of the banks, the names and functions of the employees involved, the names of the intermediaries, the amount of assets since 2008, and the name of self-reported clients. However, no NPA has been signed so far as it poses a number of legal questions and the notion of ‘maximal cooperation’ needs to be better defined. It would submit the banks to US laws while their first duty is to Swiss laws and regulations, including Swiss banking secrecy and data protection.
‘Forum’ broadcasted that a lot of US clients chose to do a voluntary disclosure but not all of them. Hence the DoJ informally requested the banks to draft the tax treaty requests themselves in order to try to capture the remaining ‘recalcitrant’ clients. This position is surprising as usually it is for the foreign tax authorities to produce such a document and send it to Bern where it is processed by the Swiss authorities.