The Swiss newspaper Le Temps is the latest media to report on the model Non-Prosecution Agreement (NPA) that the Category 2 Swiss banks have received. As a reminder the Category 2 banks are the ones that are not already under investigation by the US Department of Justice (DoJ) but have reasons to believe that they have committed tax-related offenses in regards of US-linked assets. Le Temps manage to get hold of the document that the Swiss television RTS revealed, and confirms that the cooperation requested by the USA goes much further than expected.
A few major takeaways can be identified, as also reported by Jack Townsend on his blog Federal Time Crimes.
1. The requirements of ‘total cooperation’ applies not only to the bank involved but also to their parent companies, subsidiaries, directors, officers, managers, employees and external advisors.
2. Spontaneous information related to the tax dispute communication does not apply only with exchange with the DoJ and the Internal Revenue Service (IRS), but also to anyone, even foreign law enforcement agencies, that the DoJ is supporting in its investigations.
3. This cooperation has no end date. It also applies to the future.
4. At this stage, it is also unclear whether the requested information would only need to be handed over while complying with Swiss law or not.
5. Failure to follow any one of the terms of the agreement would render it void. It follows that the banks could risk prosecution from the DoJ.