As the old adage goes, appearances can be deceiving. Sometimes when you peel back the layers on an issue, you find out that everyone, even the Justice Department, can engage in “spin.”
With trumpets and fanfare, the Department of Justice announced the Credit Suisse guilty plea for criminal tax evasion. Puff pieces were circulating in the press announcing the $2.6 billion criminal fine paid by Credit Suisse. Negotiation details were leaked out about last minute brinkmanship resulting in the Attorney General’s rejection of Credit Suisse’s request to avoid a criminal plea.
A closer look at the circumstances reveals that the Justice Department gave away most of its leverage in exchange for an empty “criminal” plea. It is hard to justify what the Justice Department did in this case, and I suspect in years to come, future Administrations will take a different tack.
For now, the Justice Department will have some “explaining” to do. In 2012, UBS paid a record $780 million to settle tax evasion charges with the Department of Justice. As part of the settlement, UBS provided the US government with 4,700 names of US citizens who used UBS accounts to avoid US taxes.
The UBS settlement, along with other enforcement actions, fueled the IRS’ unprecedented voluntary disclosure program leading to numerous disclosures and settlements with individuals for tax evasion. In order to comply with the US settlement, Swiss law had to be changed to permit UBS to provide the US government with the identities of the US account holders. UBS certainly paid a price for its conduct, and disclosure of the account holders was a critical part of the settlement.
Unfortunately, in the Credit Suisse case, the Justice Department folded on this important issue. All of a sudden, DOJ stopped demanding disclosure of any US account holders, claiming that such a requirement would be contrary to Swiss law and place the US government in an uncomfortable position.
Talk about speaking out of both sides of one’s mouth – instead, DOJ trumpeted the fact that Credit Suisse was the first bank to plea guilty to a criminal offense.
While on the surface, that may be true – DOJ made sure that the “criminal” plea was not in fact a “criminal” plea by negotiating with regulatory agencies, and obtaining preliminary assurances, that Credit Suisse was not going to suffer the “consequences” of a criminal plea by threatening Credit Suisse’s authority and ability to operate in the United States.
In the end, DOJ secured a criminal plea that was not criminal in consequence, other than in the plea papers, and failed to secure the identity of any US account holders who maintained Credit Suisse bank accounts for tax evasion purposes.
The bottom line for the guilty plea was that Credit Suisse had to pay a total fine of $2.6 billion. Whether or not that is sufficient “punishment” or “deterrence,” it is hard to argue that DOJ’s resolution of the Credit Suisse case was a proud day for American justice.
On the more cynical side, it has been suggested that DOJ’s motivation for the timing of the Credit Suisse plea may have been the expected release of a report by the Senate Subcommittee on Permanent Investigations criticizing DOJ for failing to pursue tax evasion enforcement against large financial institutions. That report was released on May 22, 2014, and is available here.