“UPDATE 1-Two more Swiss banks strike deals with U.S. over tax evasion” reported that the U.S. Department of Justice, (“the DOJ”), reached its 22nd agreement with Swiss banks.  A DOJ press release mentions the agreements were pursuant to the Swiss Bank Program.  The Swiss Bank Program “provides a path for Swiss banks to resolve potential criminal [tax] liabilities in the United States,” the press release says.  This program seems to be part of the DOJ’s Offshore Compliance Initiative.  Among other things, the Offshore Compliance Initiative focuses on prosecuting offshore bankers who are suspected of helping tax evaders hide assets from the IRS.  The Offshore Compliance Initiative webpage explains there are open investigations into numerous offshore banks located in Switzerland and elsewhere.  The webpage also says as part of the program, criminal charges were filed between 2008 and 2013 against “over 30 banking professionals.”

I.  RELEVANT U.S. CRIMINAL LAWS

The law most frequently used to criminally charge tax evaders in the U.S. is 26 U.S.C. § 7201 (Attempt to evade or defeat tax).   An offshore banker who opens a bank account to help a tax evader hide assets from the IRS, might be charged with conspiracy to commit a tax fraud.  See 18 U.S.C. § 371 (Conspiracy to commit offense or defraud United States).  If prosecutors believe a foreign banker promoted a fraudulent tax scheme, they might also charge him/her with mail fraud (18 U.S.C. § 1341); wire fraud (18 U.S.C. §1343); or other crimes.  Except for mail & wire fraud, the penalties for each offense can be a maximum sentence of five years.  In the case of mail &/or wire fraud, the maximum sentence in most situations may be twenty years.  A judge can direct that a sentence of imprisonment be served concurrently or consecutively.  There can also be large fines, restitution and/or asset forfeiture.

II.  INITIATING A PROSECUTION

Federal prosecutors follow:

“the principle that, ordinarily, the attorney for the government should initiate or recommend Federal prosecution if he/she believes that the person’s conduct constitutes a Federal offense and that the admissible evidence probably will be sufficient to obtain and sustain a conviction.” U.S. Dep’t of Justice, United States Attorneys’ Manual 9-27.220 §B Comment (1997).

Furthermore, “when deciding whether to prosecute, the government attorney need not have in hand all the evidence upon which he/she intends to rely at trial: it is sufficient that he/she have a reasonable belief that such evidence will be available and admissible at the time of trial.” Id.  Therefore, an offshore banker should expect to be prosecuted if federal prosecutors believe they can gather legally sufficient evidence demonstrating the offshore banker violated U.S. criminal laws.

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Copyright 2015 Fred L. Abrams