United States Department of Justice issues further information on amnesty program for Swiss banks, including details on the selection of an Independent Examiner.

On November 5, 2013, United States Department of Justice (DOJ) issued a statement strongly encouraging Swiss banks to participate in its Program for Non-Prosecution or Non-Target Letters for Swiss Banks and released additional information for Swiss banks and their legal advisers about the Program. The DOJ also issued a stern warning to Swiss banks, cautioning “those [Swiss banks] that have criminal exposure but fail to come forward or participate but are not fully forthcoming do so at considerable risk.” The deadline for submitting a letter of intent to participate in the Program is December 31, 2013 for so-called Category 2 banks (banks that believe they have violated US law in connection with undeclared US-related accounts). Eligible Swiss banks should take immediate action to evaluate whether they have committed US tax related or monetary transaction offenses and, if appropriate, submit a letter of intent to participate in the Program as soon as possible.

Responsibilities of Independent Examiner -

The November 5th news release clarifies the process for submitting letters of intent and describes the qualifications and role of a participating bank’s “Independent Examiner” under the Program. The DOJ noted “the key issue for a bank in selecting an Independent Examiner is to select one who has the ability to verify and report on the elements required under the Program for that bank… The bank should ensure that an Independent Examiner is not merely qualified, but also competent and capable of meeting his or her responsibilities under the Program for that particular bank.” It is critical that banks participating in the Program carefully select an Independent Examiner who can both present a neutral, accurate and credible analysis of the bank’s activities with respect to US accountholders and identify US tax related and monetary transaction offenses.