What next after UBS?

August 20th, 2009

So, the dust is settling. UBS has had to conceded, Swiss banking secrecy is seriously damaged, and now what?

Senator Carl Levin, has I note said:

The UBS settlement is at most a modest advance in the effort to end bank secrecy abuses, tax haven bank misconduct, and the tax haven drain on the U.S. treasury. It will take a long time before we know whether this settlement will produce meaningful gains due to treaty procedures which are complex, depend upon the Swiss government to carry out, and open the door to potentially lengthy appeals.

In the meantime, the IRS needs to keep up the pressure against offshore tax abuse, not only by going after more tax offenders, but also by taking action against other tax haven banks that have helped U.S. clients cheat on their taxes.

Congress also needs to act.  If we want to stop offshore tax abuses that produce $100 billion in unpaid taxes each year and offload that tax burden onto the backs of honest taxpayers, it is essential that Congress enact the Stop Tax Haven Abuse Act which I and my colleagues introduced earlier this year and which President Obama has endorsed. Our bill would, for example, enable the United States to prohibit U.S. financial institutions from doing business with any foreign bank that impedes U.S. tax enforcement. That new authority would provide our government with a powerful new weapon to use against tax haven banks that help U.S. clients hide assets and evade U.S. taxes. The bill also contains a host of other enforcement tools that would strengthen our tax laws and help put an end to the $100 billion in offshore tax abuses each year.

I’ agree with him on all that. But he’s got a single issue to promote. What is we think more widely?

First, what is clear is that this is a US deal. The US needs to make sure what it has secured is now made available to other states. This is critical.

Second, this is a tax deal, it needs to be extended to asset recovery, especially for developing countries. Switzerland is a favourite home for looted money.

Third, with the revised QI programme the US appears to be heading for Automatic Information Exchange (AIE). The UK is seeking to do the same through its attack on banks which the US needs to replicate). But if this so then why aren’t they promoting AEI at the OECD? Shouldn’t this be a next step? This has to be high on the agenda now both states have proved beyond doubt that Tax Information Exchange Agreements alone cannot provide the data we need to stop abuse. I have proposed a simple method of AEI that cuts out many of the objections raised to date.

Fourth, using the UK precedent it is time to prise open foreign banks as a condition of their right to trade in other states.

Fifth, as I have already suggested, we have to look at making lawyers, accountants and bankers and accountants in secrecy jurisdictions personally responsible for the advice they have given. This is easy in the USA. In a landmark case in 2005 the U.S. Supreme Court held that the proceeds of tax fraud are “property” for purposes of the wire fraud statute. Pasquantino v. U.S., 544 U.S. 349 (2005). And it so happens US law also says “Whoever, knowing that an offense against the United States has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment, is an accessory after the fact.” Which pretty much nails down all those in secrecy jurisdictions who have ever in any way assisted a US person commit tax fraud (an offence in Switzerland, note) as being liable to criminal prosecution in the USA.

Exploring this fifth option further, I think it high time the US pursued this. Of course, US jails might soon be full to overflowing. And that may not be of much benefit. So what are the alternatives for these people who have been what I call secrecy providers – the secrecy jurisdiction bankers, lawyers and accountants who facilitate the world’s illicit financial flows? How can we break the back of their pernicious trade and turn it to good effect?

First, without doubt they have to get very worried for their security. That means serious prosecution risk has to be created.

Second, like others facing serious prosecution where our capacity to actually deliver justice in court is limited I think we’ll need an amnesty. How about a ‘truth and reconciliation’ commission for secrecy providers? If they come forward and admit their past misdemeanours, openly, with names given, then the US and other states will drop charges. Of course the tax havens would threaten them with prosecution for breaking secrecy laws – but that threat can be rendered internationally unenforceable by international convention that warrants issued with regard to offences relating to banking secrecy designed to permit felony in other states are not enforceable. So these people could live in peace – but at a price. Not just names which represent the truth – although these would be important – just as it would be important that they were only supplied to competent tax authorities an no others – but social service too as recompense for past errors. What about a year’s social service in pursuit of asset recovery for developing countries being the price required for reconciliation?

Now we turn a problem into an opportunity.

And if Switzerland wanted to get ahead of the game, why doesn’t it start the process now for its own lawyers, accountants and bankers, and negotiate group immunity from prosecution for them if evidence is given of firstly their delivering the service and secondly the banks and other organisations they work for delivering names – all names – to all jurisdictions whose tax systems they have undermined? Isn’t this what we need now, as well as what Carl Levin calls for and what I call for on AIE? because isn’t it something like this that would really make a difference, especially for developing countries?

Written by Richard Murphy

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