The Agreement was passed by 31 votes to 9 with two abstentions in the Council of States on June 9 and by 81 votes to 61 with 53 abstentions in the National Council on June 15. Following the request of the Settlement Conference, the two Councils today decided not to make the federal decree on approving the UBS Agreement subject to an optional referendum. There is thus no need for a final vote on the last day of the summer session.
The revised UBS Agreement remedies the shortcomings identified by the Federal Administrative Court in its ruling dated 21 January 2010. The formal changes make it clear that the Agreement is in fact an international agreement that clarifies the legal framework of the bilateral double taxation treaty and defines “tax fraud or the like” qualifying for treaty assistance as including continued and serious tax evasion. Parliament’s approval of the Agreement enables Switzerland to meet its obligations under international law, which continue to apply irrespective of the Federal Administrative Court’s ruling.
The revised UBS Agreement has been applied on a provisional basis since the amending protocol was signed on 31 March 2010. This is the only way to ensure that the deadline for issuing all 4,450 final decisions (the end of August) can be met. However, so as not to pre-empt the parliamentary decision, the Federal Council had instructed the Swiss Federal Tax Administration not to pass any client details to the US before the Agreement was approved. Today’s decision means that nothing now stands in the way of UBS client details being disclosed in cases where the decision handed down has taken legal effect.
Treaty Assistance Process On Course
The UBS Agreement obliges the Swiss Federal Tax Administration (SFTA) to assess approximately 4,450 UBS accounts. The SFTA checks whether the criteria for providing treaty assistance as stipulated in the Annex to the UBS Agreement are met. The criteria are assessed as a whole in each case. The procedure serves solely to determine whether treaty assistance can be provided in cases of suspected tax fraud or the like. It is fundamentally different to a standard tax assessment, in which tax factors such as capital gains, for example, are calculated according to different criteria.
The SFTA has so far completed the process in approximately 1,800 cases. As a result of these, details of around 500 UBS clients have been disclosed to the US by the SFTA or UBS with the consent of the clients concerned. In addition, 400 final decisions, which have not yet taken leagal effect, have already been sent and a further 650 are ready for dispatch. Following the parliamentary decision, details of approximately 1200 cases can be disclosed to the US (the remaining decisions that have been issued have not yet taken legal effect). The SFTA has thus processed around 3,000 cases to date. Almost all of the remaining cases – roughly 1,450 – are already being processed, so efforts to comply with the treaty assistance request are on course.
To speed up handling of the treaty assistance request and ensure that the assessment of the approximately 4,450 UBS accounts could be completed within 360 days, a project organization headed by Hans-Jörg Müllhaupt was set up in August 2009. A system was created based on the electronic processing of client dossiers provided by UBS. There are currently around 40 people working within the project organization.
Procedural Rights Protected
The SFTA grants those affected access to records and the right to respond on request. Their procedural rights thus remain fully protected. The SFTA then determines whether treaty assistance is to be provided and issues a final decision. After receiving the final decision, those affected have 30 days to appeal to the Federal Administrative Court, which is then responsible for handing down a definitive ruling.
Last modification 17.06.2010