18 thoughts on “Notice to Swiss Authorities: Canada resists US extraterritorial tax policies, Switzerland must too”

1. @Jeff, great letter. I hope someone reads it, absorbs it and GETS it! Although, I have to say, I am not confident of my Canadian gov’t standing strong (working on post on that today). However, as you say, at least they’re not just saying, yes, sir, how high, sir, which some of the other countries are.

2. @outragedcanadian Still no response from the Swiss authorities as far as I can tell.

3. I think we’re only in the phony war stage of FATCA. When FFIs start to get customer objections, and legal action then the real war begins at first in 2013 over data. Certainly after the US tries to start withholding money on “pass-thru” payments in 2017 the real fireworks begin. Fair enough, if the US wants to withhold on US-sourced payments, the US is entitled to, but on payments from foreign bank to foreign bank, it’s not going to wash.

   At the end of the day if someone is hard headed enough, they could trade US stocks in their foreign wife’s name and get away with it – at least for now.

   What the US doesn’t (or more like the those idiot US Senators Schumer, Grassley, Casey, and Kerry) understand FATCA will probably hasten the process of taken down the US dollar as the sole world reserve currency. When more and more trade invoices start to get settled in Euros ( and I believe Europe is going to fix its problems because they’ve got no other choice), or Yuan, FATCA will only become an issue if you trade in US dollars. FATCA will push Europe and China to deepen their financial markets further nullifying the US’s advantage because the trade invoice business will be there.

   The new trade route of the world is from Brazil to Africa to Russia and the Far East. Why on earth would anyone want to invoice in US dollars with FATCA? Why should the 80% of the remaining world economy rely upon the US dollar? I think the arguments in favour of continue usage of the US dollar because of a stable US political system along with US military back up are becoming weaker by the day. Does anyone believe with 100% certainty the US will be the same country in 2100 or the world for that matter?

   The US is only about 19-20% of the world economy in 2012 by 2050 that’ll be down to 10% or less. FATCA is just going to put the US dollar out of a full time job in future.

   Moving away from the US dollar from the sole reserve currency is all about trust. Will China or Europe earn that trust to move away or will the US push people away from the US dollar where trust becomes issue #2.

   There’s an historical shift of power taking place in the world at the moment and the US is not going to be the winner. The US should be at this point in history trying to do everything to make the US economy the most attractive, robust, easy, and best place to do business in the world and encourage the continued use of the US dollar as the reserve currency. What is the US government doing? It’s doing the opposite with Sabane-Oxley, Dodd-Frank, FATCA, the Volker Rule, and its treatment of US ex-pats. All this regulation, control and reporting is going to work against the US. It’s a receipe for decline. I don’t think the US has 200 years of play time to fix its problems.

   Another train of thought is should the world continue using the currency of a country that’s politically paralysed, broke at present, with declining world trade, poor infrastructure, resting on its past achievements, a shrinking middle class, and no policy to manage entitlements, housing, energy, and transport costs? A country not making any real investments in the future? Just look around the world, which countries are all the big infrastructure projects taking place? It’s not the US.

4. This is the right tactic but it is way too long; MEGO at para. 3.

   If you would enlist Swiss resistance you must focus on the Swiss national interests involved – not the peculiar interests of US persons sojourning in the Confederation.

   Such appeals need to focus on the defence of Swiss sovereignty, public policy choices and values.

5. Excellent letter, I would encourage those living in countries other than Switzerland and Canada to follow suit in their own countries. Personally I think this approach is at least as likely to bear fruit, and probably more likely, than going through ACA, Democrats Abroad, or similar US-oriented organizations, because a) US expats who are still USC have their votes hopelessly diluted in the US electoral process and no Senator or Congressperson gives a rat’s behind what you think about these issues, and b) if you’ve been living outside the US for a significant period of time and are in reality or in their eyes likely to renounce or relinquish, why should they care a rat’s behind what you think about anything?

   I agree to some extent with todundsteur that you need to focus on your country’s interests as well, and if in fact you are a mere “sojourner” where you live, why should your country think about what you want, either — but if in fact you’ve taken the trouble to become a citizen of that country, have developed a life (family, business, career) in that country, and intend to maintain that life indefinitely (whatever aspirations you may or may not have about USC), then I think you have every right to focus on how this affects you, your family, your business, your life as well as the implications for the country at large.

6. @todandsteuer I agree it is too long. But at the time I wrote it (a few months ago) I wanted to lay all of the abuses on the table. (This post jump to the top of Brock when I went back and tagged it earlier today following Eric’s analysis of search engine results).

   It does bring to light the issue of non-US Swiss people eventually becoming increasingly affected if the Swiss government continues to putter around. Perhaps I should write another, shorter letter that outlines what FATCA and the general extraterritorial policies mean for the Swiss in general (without mentioning USC’s and dual nationals) and the risks for global market destabilization as a whole (FATCA 30% withholding).

   Maybe you, @todundsteuer, could help me formulate a new text? Perhaps even you might be willing to be the key author and to send it out. If the authorities keep receiving minature legal briefs from Jeff all the time they might get tired of it, but if there are other voices singing in the forest and yodling from the mountaintops, they might pay attention. I don’t remember if you are in DE, A, or the CH, or perhaps even in FL or LUX, but I’m certainly open to your critical thoughts and input. I’m not after any renown here. What I write, for better or worse, is for the common good of all that are affected by the atrocious policies of the US, and ultimately for the common good of democracy and democratic values.

   There is no one best solution to the problem. We have to work it from all angles.

7. It would be good to collect the facts and legal issues and to organize them in such a manner that one can clearly see how it is and what needs to be done. This would make it easier and more understandable for the busy working middle class in Switzerland to become more involved. The only weapon a small country has against larger the US is its “state of law”. Could the Swiss-US double-tax treaty be translated into plain English so that simple people can understand it better in relation to IRS regulations? The double-tax agreement with the US defines that a citizen may not be double-taxed by two governments. Switzerland does not tax Swiss who live in America, but America seems to tax Americans who live in Switzerland. Is America thus not in violation of its own laws, considering that it didn’t even adjust the foreign exclusion to reflect the reduced value of the dollar?

8. The Swiss-US tax treaty writes:

   “salaries, wages, and other similar remuneration
   derived by a resident of a Contracting State in respect of an employment shall be taxable only in that State”
   http://www.irs.gov/pub/irs-trty/swiss.pdf

   I read this to mean that income earned in Switzerland and taxed by the Swiss government may only be taxed by Switzerland, regardless of Foreign Earned Income Exclusion limits.

9. @Daniel, but watch out for the so-called saving clause: “…the United States may tax … its citizens (including its former citizens) as if this Convention had not come into effect.” While true double-tax relief is still possible, this unfortunate provision means that where US tax exceeds Swiss you can end up owing the difference to the US, regardless of almost all other treaty provisions. This sneaky, duplicitous and inequitable clause appears in most, if not all, US tax treaties.

10. @watcher@daniel Watcher is right about the savings clause. Your excerpt from the treaty via the IRS site represents the way things should be but it is misleading. The insidious presence of the savings clause lurks in many US tax treaties with foreign nations.

    I have always argued that the Swiss-US tax convention (referred to in Switzerland as a convention to avoid double-taxation) is a farce and a swindle. The problem is that the Swiss people probably rarely read it.

    Article 1 Section 2 of the Swiss-US tax convention:

    « Notwithstanding any provision of this Convention except paragraph 3 of this Article, the
    United States may tax a person who is treated as a resident under its taxation laws (except where
    such person is determined to be a resident of Switzerland under the provisions of paragraphs 3 or
    4 of Article 4 (Resident)) and its citizens (including its former citizens) as if this Convention had
    not come into effect. »

    However, also see the Swiss Federal Constitution (CFS) (http://www.admin.ch/ch/e/rs/101/index.html#id-ni10-ni12):

    Art. 141a CFS Implementation of international treaties:

    …If the decision on ratification of an international treaty is subject to a mandatory referendum, the Federal Assembly may incorporate in the decision on ratification the amendments to the Constitution that provide for the implementation of the treaty…

    Art. 140 CFS Mandatory referendum:

    1 The following must be put to the vote of the People and the Cantons:
    a. amendments to the Federal Constitution;
    b. accession to organisations for collective security or to supranational communities;

    As far as I am concerned the savings clause is unenforceable in Switzerland as its enforcement would require attainder provisions in Swiss federal law (for example, in the Penal Code, Article 261/261bis non-discrimination, Article 271 illegal acts on behalf of a foreign state) as well as several dozen “bill of rights” articles at the beginning of the Constitution that protect inter alia against discrimination and arbitrary treatment, and ensure equality of economic oppourtunity, and require (Art 2) that the authorities act to preserve the rights and interests of the people.

    I know of no attainder provisions in Swiss Federal Law or the Swiss Constitution that exclude Americans from the protections and guarantees of rights enumerated therein.

    As far as I can remember, Swiss jurisprudence has held that a treaty can override the Constitution if it is “self-executing” (but this jurisprudence seems to me to be inconsistent with Art. 140 CFS when read in parallel with Art. 141a).

    In any case, the tax convention is NOT self-executing because it does not define who US citizens and former US citizens are. The US could one day decide that Swiss relatives of US citizens descended from the same family are USP’s. The Swiss Constitution is meant to protect the Swiss People against foreign intrusion and arbitrary treatment, and guarantees the sovereignty of the Swiss People. Swiss federal legislation (RS291, Art 23 Swiss Federal Law on International Private Legal Matters) settles the question of dual nationality: if one is Swiss, they are considered by Switzerland as SWISS…PERIOD, if one has two other nationalities then the nationality with which one has the most contact wins. For example, if one lives in Annemasse France, has French and US nationality, a permanent residence in France, an account in Switzerland, revenue in Switzerland from work or business, and no permanent abode in the US, Switzerland must consider the person as FRENCH and ONLY FRENCH. If they fly into Zürich airport on their way back from a vacation in Florida carrying a US passport, the police don’t care, but they are FRENCH as far as RS291 is concerned.

    Legal Challenge Possible in Switzerland Against Savings Clause
    In the case of a USP with Swiss nationality, resident in Switzerland, I believe that there is a clear legal challenge in the making against the savings clause, especially if one combined the arguments above with arguments based upon the US constitutional protections under the 8th, 9th, 4th, and 5th (and 6th/7th? e.g. Does the tax court in the US conduct jury trials??) amendments: we all know that internal revenue code and the laws that institute FBAR and FATCA blatantly contravene the US Constitution, if not always in letter certainly in the way that they are executed. There is also the non-enumeration of US citizens abroad in the Census (violation of Article 1, Section 2 USCONST) and resulting non-proportional representation in the House. Swiss Federal law provides that Swiss judges may interpret foreign law when necessary (I don’t have the citation here, but I can find it later), so therefore arguments about the US Constitution would be admissible. It would also be useful to tie in various articles of the Universal Declaration of Human Rights, which the US has accepted, and Switzerland as well when it entered the UN about 10 years ago.

    Also, in Switzerland THE PEOPLE ARE SOVEREIGN. The government cannot propose a change to the Constitution and have it ratified by the Cantons as the in the US (proposal in Congress, ratification by the States). Someone must propose an amendment (Parliament, the Federal Council i.e. the President and Cabinet, or the people through an initiative) and then a majority of the Cantons AND THE PEOPLE must approve it through a formal voting process. Thus the savings clause attempts to exert US legislative authority over the activities of people in Switzerland, and in the case of people who have Swiss nationality and USC/green card, over a part of the SOVEREIGN BODY OF THE NATION. Thus the savings clause is unconstitutional, unless the SOVEREIGN PEOPLE and the CANTONS vote in favor of it. There has been no vote on the matter to my knowledge.

    I would propose two immediate steps to harden Switzerland against US extraterritorial bureaucratic imperialism: 1. A constitutional initiative in Switzerland making RS291 part of the Constitution. 2. A vote FOR the constitutional initiative coming up in late June that would subject certain treaties to a mandatory vote (extension of the requirements of Arts 140 and 141a CFS). A further step would be a constitutional initiative explicitely repealing the Swiss-US Tax treaty “savings clause”, or perhaps some broader language that would have the same effect.

11. For the benefit of readers from other countries… worth noting that not all “saving clauses” are created equal. The UK/US one for example “times out” after ten years. Marginally better than some of the others, then. Depending on where you are, your mileage may vary.

12. @watcher: perhaps this is a 16th amendment violation? How can the US treat USP’s in one country differently than another?

13. @Jefferson: “How can the US treat USP’s in one country differently than another?”

    The “time out” I mentioned in the UK tax treaty’s saving clause is for former US citizens and long-term residents. These folk aren’t USP’s by definition, so I suppose the problem doesn’t arise. The full text in all its gory detail is here:

    http://www.treasury.gov/resource-center/tax-policy/treaties/Documents/uktreaty.pdf

    The UK one is the one I’m most familiar with, because it’s the one I have to deal personally. I have however noticed some real variations in others. Canadian duals, for example, seem to get more onerous (though not necessarily more heavily taxed) pension treatment than Brit duals. But then, tax treaties are slippery items and take a looong time to digest. Most appear to contain more exceptions to rules and exemptions to exceptions to rules than they do actual rules.

14. @Watcher So if they aren’t USP’s by definition, they are not protected by the Constitution. Therefore the US has no authority over them. My principle is, if a nation attempts to exert authority over somebody and does not at the same time feel bound by duty to protect the rights of the person, there is no social contract, hence the authority that the nation attempts to exert is an usurpation and invalid.

15. @Jeff et al.

    The most obvious way to appeal to the average voter and/or his elected representatives in a democracy like Switzerland is to express the issue in terms they can understand: money and national pride.

    The message would read something like this:

    In March 2010 the US legislature passed a revolutionary law aimed directly at the peace, dignity and pocketbook of the people of [insert country] and all other democratic countries of the world.

    Under this law the United States of America requires all financial institutions in your country to expend enormous amounts of money for the sole purpose of assisting the US tax authorities in collecting taxes from US citizens – both those residing in [name of country] and elsewhere – who are customers of your country’s financial service providers.

    The financial cost – estimated to be in the 100s of millions of [insert local currency here] – will be borne in the first instance by the financial institutions themselves but will ultimately be paid for by you and the other tax-paying citizens and residents of [name of country] in the form of reduced corporate tax receipts or higher fees for utilizing the services of your own country’s financial services industry.

    In addition, the US will insist that your financial institutions must either disobey your country’s existing laws protecting the privacy and financial integrity of ALL the citizens and residents of your country or seek the passage of new laws that will expressly permit your country’s financial institutions to breach their contractual guarantees and deny civil law protections to one class of their customers residing in your country: US citizens.

    The US intends to use this information to extort money – not necessarily in the form of taxes – from its diaspora in [name of country]. This will include people who may be members of your family, friends or your neighbors and business associates. They will do this by threatening them with expropriation of the value of their financial holdings entrusted to your country’s financial services industry – whether or not they have already paid taxese on whatever income those assets may have produced.

    What is the US offering you in exchange for your country’s expense, humiliation and betrayal of its values?

    In exchange for relinquishing your country’s sovereignty and dignity, the US will agree to allow the people of your country and the rest of the world to invest in the United States without subjecting them to a 30% punitive withholding fee on their US source income.

    What’s not to like about that deal?

    The law is called FATCA. It is presentely scheduled to go into effect worldwide on 1 January 2013.

    Your country’s choice – and yours – is simple: resist or surrender.

    Please tell your elected representatives which path you choose.

16. PS,

    Of the 5 European countries who have indicated a willingness to sell their US citizen residents down the river, the banks of all of them with the possible exception of Germany are in a parlous financial condition and can ill afford the expense of implementing FATCA.

    All of these countries have 1st class newspapers with US foreign correspondents either focussing on political or financial developments in or originating from the US. Those correspondents all speak excellent English and can command the attention of decision makers in their respective country.

    Right now they are all distracted by the EURO crisis and the upcoming European Soccer championships.

    Nevertheless the question: “What is the US doing to help Europe in its hour of need? is one that is being asked time and again.

    If the public in these countries knew that the answer was FATCAT there might be consequences for the fate of this legislation.

17. The Postfinance, a Swiss Federal government-owned banking organization, announced today that it is terminating all US citizen accounts who do not live in Switzerland or do not also have Swiss citizenship. Previously, the Postfinance had accepted accounts from US citizens abroad who received Swiss pension payments, owned property or had business dealings in Switzerland. Approx. 1,700 account relationships will be terminated as a result of this change. 

    – With an average account balance of less than CHF 50,000, these are not the “Superreich”, according to the press release. 

     http://www.nzz.ch/finanzen/nachrichten/_awp/?ID_INSTRUMENT=0&ID_NEWS=4dded82d96471796

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