Posts

Privatbank Von Graffenried AG Signs Non-Prosecution Agreement

/0 Comments/in , /by

On July 2, 2015, the US Department of Justice announced that Privatbank Von Graffenried AG became the fifteenth bank to sign a Non-Prosecution Agreement under the DOJ’s Swiss Bank Program. It also became the 27th bank on the 50% penalty list for US taxpayers who wish to enter the OVDP.

Background Information

Von Graffenried is a private bank founded in 1992 and based in Bern, Switzerland. Starting in at least July 1998, Von Graffenried, through certain practices, assisted U.S. taxpayer-clients in evading their U.S. tax obligations, filing false federal tax returns with the Internal Revenue Service (IRS) and otherwise hiding assets maintained overseas from the IRS.

Von Graffenried opened and maintained undeclared accounts for U.S. taxpayers when it knew or should have known that, by doing so, it was helping these U.S. taxpayers violate their legal duties. Von Graffenried offered a variety of traditional Swiss banking services that it knew could assist, and that did assist, U.S. clients in the concealment of assets and income from the IRS. For example, Von Graffenried would hold all mail correspondence, including periodic statements and written communications for client review, thereby keeping documents reflecting the existence of the accounts outside the United States. Von Graffenried also offered numbered account services, replacing the accountholder’s identity with a number on bank statements and other documentation that was sent to the client.

In late 2008 and early 2009, Von Graffenried accepted accounts from two European nationals residing in the United States who had been forced to leave UBS and Credit Suisse, respectively. At the time it accepted the accounts, Von Graffenried knew that UBS was the target of an investigation by the Department of Justice. It also knew that both individuals had been forced to leave their respective banks because the banks were closing their accounts, and that both individuals had U.S. tax obligations and did not want the accounts disclosed to U.S. authorities. Senior management at Von Graffenried approved the opening of these accounts.

When Von Graffenried compliance personnel sought to obtain an IRS Form 8802, Application for U.S. Residency Certification, from one of the accountholders, that accountholder replied that completing the form would be problematic for him and that he believed the relationship manager knew why. The beneficial owner of the second account was referred by an external fiduciary, who handled the account at Credit Suisse. The fiduciary told a Von Graffenried relationship manager that Credit Suisse was attempting to exit its U.S. offshore clients to other banks if the clients would not sign an IRS Form W-9. The relationship manager agreed to take on the account, which was held by a Liechtenstein “stiftung,” or foundation, with the beneficial owner as the primary beneficiary and U.S. citizens as other beneficiaries.

Between July 1998 and July 2000, Von Graffenried accepted approximately two dozen accounts from a specific external asset manager. Von Graffenried was aware that the external asset manager seemed to be targeting U.S. clientele. Sixteen of the accounts were beneficially owned by individuals with U.S. tax and reporting obligations, and most of those accounts were held by U.S. citizens residing in the United States. At the time, Von Graffenried did not have a policy in place that required U.S. clients to show tax compliance. Consequently, Von Graffenried accepted these accounts without obtaining IRS Forms W-9 or assurances that the accounts were in fact tax compliant. By early 2009, Von Graffenried determined that some of the external asset manager’s accountholders likely were attempting to evade U.S. tax requirements. In 2010, Von Graffenried began to close the existing U.S.-related accounts that originated with the external asset manager. Von Graffenried did not complete the exit process for these accounts until late 2012.

Non-Prosecution Agreement with DOJ

According to the terms of the non-prosecution agreement signed on July 2, 2015, Von Graffenried agreed to cooperate in any related criminal or civil proceedings, demonstrate its implementation of controls to stop misconduct involving undeclared U.S. accounts and pay penalties in return for the department’s agreement not to prosecute Von Graffenried for tax-related criminal offenses.

Since August 1, 2008, Von Graffenried held a total of 58 U.S.-related accounts with approximately $459 million in assets. Von Graffenried will pay a penalty of $287,000.

In accordance with the terms of the Swiss Bank Program, Von Graffenried mitigated its penalty by encouraging U.S. accountholders to come into compliance with their U.S. tax and disclosure obligations.

Consequences for US Taxpayers With Undisclosed Accounts at Von Graffenried

There are two major consequences (for US taxpayers with undisclosed accounts) of the Von Graffenried’s participation in the Swiss Bank Program. First, as it was mentioned above, if such taxpayers with undisclosed financial accounts at Von Graffenried wish to enter the 2014 IRS Offshore Voluntary Disclosure Penalty, their penalty rate will now go up to 50% of the highest value of the accounts.

Second, as part of its participation in the Swiss Bank Program, Von Graffenried also had provided to the IRS certain account information related to U.S. taxpayers that will enable the IRS to make requests under the 1996 Convention between the United States of America and the Swiss Confederation for the Avoidance of Double Taxation with Respect to Taxes on Income for, among other things, the identities of U.S. accountholders. If the IRS is successful, then, these accountholders are likely to be rejected from the OVDP participation and may face draconian civil and criminal FBAR and income tax penalties.

Contact Sherayzen Law Office for Professional Help With Undisclosed Foreign Accounts

The number of banks which are coming forward to disclose their US clients’ accounts is growing rapidly with each passing month. Moreover, the great majority of the banks worldwide are also attempting to comply with various FATCA requirements.

This means that the longer US taxpayers with undisclosed foreign accounts wait, the more likely it is that their situation will worsen. The risk of the IRS discovery is higher today than ever before, and the consequences of such a discovery may be truly grisly.

This is why, if you have undisclosed foreign accounts or any other assets, contact Sherayzen Law Office as soon as possible. Our professional legal team is highly experienced in handling all types of offshore voluntary disclosures. We can handle the entire process of your voluntary disclosure from the beginning to the end, including the preparation of all tax forms and legal documents.

So, Contact Us Now to Schedule Your Confidential Consultation Now! We Can Help You!

Bank Sparhafen Zurich AG Reaches Resolution with DOJ

/0 Comments/in , /by

On June 19, 2015, the Department of Justice announced that Bank Sparhafen Zurich AG (Bank Sparhafen) has reached resolution under the department’s Swiss Bank Program.

Bank Sparhafen Background Information

Bank Sparhafen was founded in 1850 and has its sole office in Zurich. Bank Sparhafen knew that U.S. persons had a duty under U.S. law to report their income to the Internal Revenue Service (IRS) and to pay taxes on that income, including all income earned in accounts that Bank Sparhafen maintained in Switzerland. Despite this knowledge, Bank Sparhafen opened, maintained and serviced accounts for U.S. persons that it knew or had reason to know were likely not declared to the IRS or the U.S. Treasury, as required by U.S. law.

After August 1, 2008, U.S. persons opened 32 U.S.-related accounts at Bank Sparhafen, and only one of them provided a Form W-9 to Bank Sparhafen upon opening an account. In most cases, the U.S. persons who opened accounts at Bank Sparhafen during this period had been required to close their accounts at other Swiss banks, and Bank Sparhafen knew or had reason to know that most of these accounts were likely not declared to the IRS. Moreover, 22 of the U.S.-related accounts opened during this period were funded by transfers from banks that were or are the targets of Justice Department criminal investigation.

Two relationship managers at Bank Sparhafen were responsible for managing most of its U.S.-related accounts in the period since August 1, 2008, and one of those managers directly reported to Bank Sparhafen’s chief executive officer. Bank Sparhafen relationship managers assisted U.S. persons in executing waiver forms that directed the bank not to acquire U.S. securities in their accounts. Bank Sparhafen knew that the purpose and effect of these forms was to avoid disclosing the identities of the U.S. persons to the IRS.

Until 2012, Bank Sparhafen provided its U.S. clients with an option for hold-mail agreements, even though it understood that providing these agreements upon request could allow U.S. persons to keep evidence of their accounts outside of the United States in order to conceal assets and income from the IRS. One U.S. client told his Bank Sparhafen relationship manager by email that the hold-mail fee was “cheap insurance against having my dealings with you come to the attention of the government revenue authorities.”

Bank Sparhafen also offered travel cash cards to its clients, including U.S. persons. A client could instruct Bank Sparhafen to load up to 10,000 Swiss francs, U.S. dollars or euros from his or her Bank Sparhafen bank account onto a travel cash card. The client could then use the card for purchases or remit unused balances back to the Bank Sparhafen account. U.S. persons’ use of these cards facilitated access to or use of undeclared funds on deposit at Bank Sparhafen. One Bank Sparhafen relationship manager sent a brochure about travel cash cards to a U.S. client who did not wish to transfer money to the United States because of “surveillance” concerns.

Bank Sparhafen’s Participation in the Swiss Program for Banks and DOJ Non-Prosecution Agreement

In accordance with the terms of the Swiss Bank Program, Bank Sparhafen described in detail the structure, operation and supervision of its U.S. cross-border business, including the names of relevant individuals and entities. It also encouraged existing and prior holders of U.S.-related accounts to disclose their accounts to the IRS through the Offshore Voluntary Disclosure Program.

According to the terms of the non-prosecution agreements signed on June 19, 2015, Bank Sparhafen agreed to cooperate in any related criminal or civil proceedings, demonstrate its implementation of controls to stop misconduct involving undeclared U.S. accounts and pay penalties in return for the department’s agreement not to prosecute these banks for tax-related criminal offenses.

Since August 1, 2008, Bank Sparhafen held 91 U.S.-related accounts, with over $25 million in assets. Bank Sparhafen will pay a penalty of $1.81 million. In accordance with the terms of the Swiss Bank Program, Bank Sparhafen mitigated its penalty by encouraging U.S. accountholders to come into compliance with their U.S. tax and disclosure obligations.

Consequences for US Taxpayers with Undisclosed Accounts at Bank Sparhafen

On August 4, 2014, the IRS increased the OVDP penalty to 50 percent from 27.5 percent if, at the time the taxpayer initiated their disclosure, either a foreign financial institution at which the taxpayer had an account or a facilitator who helped the taxpayer establish or maintain an offshore arrangement had been publicly identified as being under investigation, the recipient of a John Doe summons or cooperating with a government investigation, including the execution of a deferred prosecution agreement or non-prosecution agreement. This means that, starting June 19, 2015, noncompliant Bank Sparhafen’s U.S. accountholders are likely to now pay a 50 percent penalty to the IRS if they wish to enter the IRS Offshore Voluntary Disclosure Program.