Is Bank Secrecy Disappearing?

In recent months, news surrounding international bank secrecy has taken center stage across various media outlets and government discussions. From the UBS probe to the Stanford scandal, bank secrecy has been attacked and shrouded as illegal tax evasion or unsavory business practice. While certain individuals, including those at the heart of the UBS scheme and Alan Stanford, use offshore bank secrecy to break laws, many just business owners seek bank secrecy and offshore advantages for legitimate, legal reasons. Switzerland is just one nation currently on the chopping block regarding its bank secrecy laws. Swiss officials are playing a delicate balance of providing legal alternative banking options to principled persons while complying with international economic laws to avoid criminal activity.

Why is Bank Secrecy Under Attack?
For many high-tax, big-government nations, like the U.S. and U.K., issues surrounding bank secrecy have always been controversial. When scandals arise, like the UBS issue of late, those who oppose bank secrecy come out in force. UBS was indeed acting in opposition to U.S. laws regarding the ability for U.S. citizens to seek private, offshore accounts in order to hide income from the IRS. However, the question became whether the Swiss government had a responsibility to turn over the names of U.S. account holders, and, more importantly, whether it had the legal right to do so.

Until recently, Swiss law has been very clear that tax fraud is a crime while tax evasion is not. To the IRS, both are crimes. Tax fraud is knowingly filing incorrect or illegal documentation to avoid taxes; tax evasion, on the other hand, is the intentional non-payment of taxes. This small distinction in Swiss law upholds the bank secrecy of those who are acting to evade taxes regardless of their status of citizens in other countries. The question with UBS was whether or not Swiss authorities could legally turn over names of individuals who, under their current laws, had not committed a crime.

Several factors elevated the significance of bank secrecy laws in recent months, drawing what is rarely more than a blurb on page 12 to the front page of major papers. First, this discussion came at the heat of multiple financial scandals which have been plaguing the world financial system. Additionally, a new Presidency in the U.S. has weighed in heavily on the issue of tax haven abuse; President Obama sponsored a bill as a Senator entitled the "Stop Tax Haven Abuse Act." Finally, issues of private tax havens will be discussed in the upcoming G-20 summit this April.

Because of these factors, the age-long question of legality of bank secrecy has again become a priority. Nations which have historically provided bank secrecy must rethink their practices to encourage international commerce and positive standing of their financial systems.

How Will Bank Secrecy Change as a Result?
While many of us are participating in the bank secrecy discussion for the first time, there is a rich background of debates that took place before our current concern. Historically, despite these many debates, little has changed. The reluctance to change is mostly due to the fact international commerce relies on competitive advantages each nation can provide. For example, the U.S. acts as an offshore banking center for many foreign investors seeking both bank secrecy and tax reduction. Because every nation needs these competitive advantages to participate, particularly undersized nations like Switzerland and Lichtenstein, over the years, most discussions have ended in a stalemate.

This time, however, there are some small, significant changes taking place in bank secrecy laws. The Wall Street Journal recently published a story on the current pledges taken by Andorra and Liechtenstein to relax their bank secrecy laws. According to the article, both Liechtenstein & Andorra are "committed to changing their laws to ensure bank transparency and to allow legal assistance according to OECD standards." With the pending G-20 summit threatening to blacklist and sanction these nations, which it previously determined were compliant, changes are coming.

In Switzerland, authorities have announced they will exchange information of those who are guilty of tax evasion in their host countries. This will require renegotiation of tax treaties with a multitude of nations. Sharing this information marks the first time Swiss authorities have stopped distinguishing between fraud and evasion, and it is likely other nations will follow suit. You will no longer be protected if you implement practices that allow you to avoid paying taxes you owe at home by setting up a private, offshore account.

What Legitimate, Legal Options are there for Bank Secrecy?
If you intend on committing tax evasion, there are no legal options for you. If you, however, are concerned with bank secrecy to protect your private assets, your clients' personal information, or other, non-tax-related strategies, not much will change.

Switzerland has taken the lead in assuring the Swiss Banking Act of 1934 will not be amended in terms of bank-client confidentiality. Other nations cannot simply request a list of all bank customers who have accounts in Switzerland. Rather, they must first submit a request that details evidence a crime has been committed, names the individual suspected of the crime and details the branch of bank it has been committed in.

At least in Switzerland, there are still no "fishing expeditions" for foreign account holders. If you have no intention of committing a crime, you will still be protected by Swiss privacy laws, and your bank secrecy will ultimately be upheld.

As specialists in private banking with over 18 years in the field, we have seen many of these debates come and go. Most of the time, few changes result from the fist-waving of angered Senators. In some cases, though, like this current case, small changes are implemented to stop illegal abuses. Ultimately, changes that make it harder for people to break laws and avoid taxes have a positive influence on international bank centers. The more compliant these centers become in regards to tax evasion and money laundering, the more legitimate, offshore business will be seen for what it is: a legal strategy to provide private banking services for businesses with unique needs.