The UK/Swiss Tax Co-Operation Agreement: Implications For Individuals, Executors, Trustees And Beneficiaries – Even Tax-Compliant Ones - Offshore Financial Centres

Media attention on the recent UK/Swiss Tax Agreement on Co-operation in Tax Matters (the Agreement) has, understandably, focused on individuals who have put money into Swiss bank accounts and who have known – or at least turned a Nelsonian blind eye to – the fact that they were not fully complying with all their tax obligations. The possible implications of the Agreement go wider than this, however. It can produce unexpected headaches for onshore and offshore trustees and beneficiaries, for those who inherit assets, and most especially for those who have fully complied with their UK tax obligations.

It is vital that individuals and trustees who hold relevant Swiss assets and who have complied with their UK tax obligations appreciate that they must, nonetheless, take positive action in relation to the Agreement, otherwise they will suffer tax a second time. It will be important for trustees and affected beneficiaries to be sure that the Swiss bank has understood the terms of their trust, so that it has made a correct identification of both:

whether there is in fact anyone at all who falls within the definition of 'beneficial owner' of the account or of relevant assets; and
whether or not that person is domiciled in the UK.

If the bank gets either of these wrong, or is not provided with the necessary information to get it right, a potentially heavy tax liability can be paid unnecessarily. Likewise, in the case of individuals who are UK resident but not UK domiciled (non doms), it will be important to be sure that the bank understands their own individual status and circumstances correctly, and the limitations on their potential exposure this will bring. In short, in every case where there are relevant assets, the implications of the Agreement need to be thought through according to the particular facts of the case. This briefing aims to give preliminary pointers on some of the issues that will need to be addressed as part of that exercise. For ease of reference, the main defined terms of the Agreement are included in a Glossary at the end.

THE AGREEMENT'S PURPOSE

HMRC hailed the Agreement, signed on 6 October 2011 and expected to apply from 1 January 2013, as an 'historic' move 'to tackle offshore tax evasion' and 'resolve the long-standing abuse of Swiss banking secrecy'. The claim was that it would secure billions of pounds of unpaid tax for the UK Exchequer from 2013. Rather more soberly, the policy objective as set out in the Agreement is to provide for bilateral cooperation between the UK and Switzerland 'to ensure effective taxation in the UK of individuals with financial assets in Switzerland'. The key to understanding the Agreement is to appreciate that, from the Swiss point of view, the Agreement enables Swiss banking secrecy to be preserved but, at the same time, removes the charge that this secrecy assists tax evasion. Essentially the choice facing those with a UK tax profile who are 'beneficial owners' of relevant assets is either to authorise the Swiss paying agent (referred to as a 'Swiss bank' for simplicity in this briefing, but see Glossary for more details) to disclose certain details to the UK Revenue, or to opt to preserve Swiss banking secrecy and accept that the bank will deduct a significant withholding tax and hand it direct to HMRC – but without, in this second case, providing HMRC with any identification of who owns the moneys on which the tax arose.

There will be some individuals for whom banking secrecy is paramount: for example those whose lives are linked not only to the UK but also to one or more other jurisdictions where they fear that leakage of information might make them or family members vulnerable to, for example, kidnap and ransom demands or possibly persecution or reprisals. If the secrecy route seems to have attractions, it will be vital to consider the important general warnings on the ambit and limitations of the Agreement set out on page 6, and in particular to appreciate that the Agreement does not confer any protection from criminal prosecution.

Even in cases where, despite those warnings, the desire to preserve banking secrecy prevails and it has been decided to accept the withholding tax, it will still be important to check that the bank has correctly identified whether there actually is a 'beneficial owner' in respect of whom the charge should be levied, and if there is then the bank has calculated the amount of withholding tax correctly.

THE AGREEMENT'S STRUCTURE

Originally the Agreement covered two separate aspects: (1) a structure and choices to deal with the historic tax position where the account was open as at 31 December 2010 and is still open on 31 May 2013; and (2) a structure and choices to cover the position going forward thereafter. The essence, for both the past and the future, is that Swiss banks will continue to maintain their clients' privacy but will withhold tax in relation to relevant Swiss assets at a rate which roughly equates to the UK tax that should have been paid, and they will pay this sum direct to HMRC without disclosing the identity of the client. This withholding will be made unless the client authorises them to disclose the details to HMRC instead. In other words, the 'default' is that privacy will be maintained and tax withheld. If the taxpayer prefers disclosure, they must make a positive notification of this to the Swiss bank, by the correct time and with the appropriate information. A late addition to the Agreement was a one-off withholding of 40% on relevant assets in the event of death of a UK domiciled or deemed domiciled individual, effectively to mirror an inheritance tax charge.

The assets affected by the Agreement are basically bank accounts and shares. In particular, real estate and safety deposit boxes are excluded. See the Glossary at the end of this briefing for more details.

THE STRUCTURE AND CHOICES TO COVER THE HISTORIC POSITION

Where the account in question was open at 31 December 2010 and is still open on 31 May 2013, the Agreement offers two basic choices in order to regularise the past (and remember, a choice must be made even if there is in fact nothing to 'regularise' because UK tax obligations have already been met). Non doms are offered two further choices, to reflect their reduced exposure to UK tax.

The options for an individual who is both UK domiciled and resident are either:

the account holder authorises the Swiss bank to make voluntary disclosure to HMRC, giving details of the taxpayer's account(s) for the relevant years from 31 December 2002; or
if this authorisation is not given by the deadline, then five months after the Agreement comes into force the Swiss banks will make a one-off payment in respect of past tax to HMRC out of the assets, but it will not disclose details of the account to them. In this way, Swiss banking secrecy is preserved.

Individuals who have in fact been fully compliant with their UK tax are naturally likely to choose disclosure rather than a payment, but they still need to take steps to ensure that the details the Swiss bank proposes to disclose do in fact match those on their tax returns for the relevant years, and that errors have not crept in, otherwise they may find themselves on the wrong end of a Revenue enquiry.

If, alternatively, the one-off payment route is followed then the tax rate and basis for assessment will take account of the length of time that the assets have been held untaxed in Switzerland. Following revisions to the Agreement, the computation produces an effective rate of tax between 21% and 41%. The Swiss bank will issue a certificate which can, broadly speaking, be used as a full tax clearance against appropriate income tax, capital gains tax, inheritance tax and VAT (unless the person is or has been under investigation or lacks eligibility for clearance for similar reasons). In that case the certificate can merely be used to obtain a credit against certain tax liabilities. Since the individual's wish in making a choice of the flat rate withholding was presumably to preserve secrecy they are likely in fact simply to retain that certificate carefully as proof of compliance should HMRC later raise queries (for example, under the Agreement HMRC have some scope to demand further information from Swiss banks – see below).

The non dom has two additional options:

disclose to HMRC UK-source income and gains plus all non-UK income and gains which have been remitted to the UK where UK tax has not been fully paid, self-assess, and make a one-off payment at the 41% rate; or
confirm to the Swiss banks that none of these other options has been chosen and opt out. In this case there is no clearance of past liabilities. Non doms who are resident in the UK will want to consider the opt-out mechanism carefully if they are a remittance basis taxpayer who has not remitted non-UK income and gains to the UK and who has been compliant in respect of any UK source income.

To count as a non dom for this purpose the individual:

must not have been domiciled anywhere in the UK on 31 December 2010;
must be claiming the remittance basis of taxation for the 2010/2011 or 2011/2012 year of assessment; and
must have provided the Swiss bank with a certificate from a lawyer, tax adviser or accountant that confirms:
- that the individual is non-UK domiciled and has claimed this in their UK tax return;
- that they have claimed the remittance basis and paid the remittance basis charge, if necessary; and
- that they are not in dispute with HMRC about their status.

If an individual fails to make a choice within the time limit (which will be 31 May 2013 if the Agreement comes into force on 1 January 2013 as intended), the one-off payment in respect of historic tax will be levied. This is why it is vital that even those who have been compliant should take active steps to make a choice, or they may find themselves paying tax twice.

THE STRUCTURE AND CHOICES TO COVER THE FUTURE POSITION

For the UK domiciled and resident individual there will be two choices going forward, for income and gains after the Agreement comes into force (probably 1 January 2013):

opt for anonymity and accept that the Swiss bank will in future withhold tax on income and gains (at rates of 48% for interest income, 40% for dividend income, 48% for other income and 27% for capital gains). A certificate will be issued to provide to HMRC if necessary; or
authorise the Swiss bank to make voluntary disclosure to HMRC of arising income and realised capital gains, giving details of the taxpayer's account(s) etc.

The withholding tax is reduced where a retention already falls to be made under the EU Savings Agreement, but the two figures together produce the same rate as under the Agreement. (The interrelationship generally between the Swiss/UK Agreement and the EU Savings Agreement posed some serious problems for the Agreement as originally announced but a protocol to the Agreement, signed on 20 March 2012, seems to have resolved these.)

For a non dom the position is, as ever, rather more complex in order to reflect their reduced exposure to UK tax:

the liability to withholding tax or the authorisation for voluntary disclosure (according to the choice they have made) is limited to income and gains with a UK source, plus non-UK income and gains that are remitted to the UK;
the certification process requires the non dom to provide the Swiss bank with a declaration, by 31 March of any year, of their intention to claim the remittance basis for the following tax year. They then also have to provide the Swiss bank with a confirmatory certificate by 31 March following the end of the relevant tax year;
failure to supply the confirmatory certificate leads to increased rates by way of penalty: 50% for interest and other income, 42.5% for dividend income and 28% for capital gains.

SOME IMPORTANT GENERAL WARNINGS ON THE AMBIT AND LIMITATIONS OF THE AGREEMENT

The one-off payment to cover the historic position will not take account of any funds which have been withdrawn, so a non-compliant individual may not be able to bring all their compliance up to date via the Agreement.
A non-compliant individual cannot safely decide to take no action now and to choose the withholding tax option, because an HMRC investigation into their affairs could be started before 1 January 2013, the likely date for the Agreement to come into force.
The Agreement does not confer any protection from criminal prosecution. So non-compliant individuals should certainly consider the options of either a conventional disclosure to HMRC or using the Liechtenstein Disclosure Facility (LDF), which may be a more attractive route in some cases.
It may be cheaper to make voluntary disclosure to HMRC or to use the LDF. This is particularly true following the increases in the rates of withholding tax that have been negotiated since the Agreement was originally signed.
There is a lack of clarity at the moment about whether a one-off payment will be treated as a remittance.

HMRC 'FISHING EXPEDITIONS'?

The Agreement allows HMRC to make requests to the Swiss authorities for more information about particular cases. The number of requests allowed depends on a formula, but is capped at 500 per year for the first three years. These requests will relate to individuals chosen by HMRC but HMRC do have to show they have 'plausible grounds' for each person chosen – 'fishing expeditions' are expressly banned and some safeguards are built in. If plausible grounds are shown and certain other criteria are met then the request must be complied with unless all of the following conditions are met: (1) the account/deposit existed at 31 December 2010, (2) there has been no change of beneficial ownership since 31 December 2010, (3) the one-off payment was made, (4) the withholding tax is paid, and (5) no new money has been added to the account or deposit since 31 December 2010.

An important point to note for those considering the position of executors or of individuals who have inherited assets is that a change of ownership due to an inheritance is treated as a change of beneficial ownership. So if a Swiss bank account was inherited after 31 December 2010, it will inevitably be exposed to the possibility of information being divulged in response to an HMRC enquiry as it will not be possible for all these conditions to be fulfilled.

TRANSFER THE ASSETS FROM SWITZERLAND?

One option, for those who find the effects of the Agreement unpalatable, may be to close their Swiss accounts before the Agreement is fully in force. They should be aware however that under the Agreement the Swiss authorities are required to report to HMRC the ten jurisdictions to which the largest volume of assets has been transferred. Anecdotal evidence suggests that Singapore may be HMRC's next target.

EXECUTORS, HEIRS, TRUSTEES, AND TRUST BENEFICIARIES: WHO IS A 'BENEFICIAL OWNER'?

The lynchpin of the application of the Agreement is the existence of a person liable to at least some UK tax who has 'beneficial ownership' of the relevant Swiss assets. It is the meaning of 'beneficial ownership' that executors, trustees and beneficiaries need to address in order to understand how – indeed whether – the Agreement may affect them. The decision as to who is the 'beneficial owner' falls to the Swiss bank. This may be easy in cases where the ownership is simply personal, but given their more complex situations trustees, beneficiaries, legatees and executors will want to be sure that the Swiss bank has understood their particular situation correctly and has reached the correct conclusion.

Following on from this point, trustees would be well advised to check that Swiss banks have correctly identified relevant persons in relation to that trust. In particular, trustees need to be on the look-out for settlors being wrongly identified as beneficial owners.

There is also the possibility that a Swiss bank may not classify someone as a beneficial owner when they should have done, and if that is not spotted then compliance will have to be achieved through routes other than the Agreement.

Types of situations which may be met in practice include:

UK resident executors of an English Will, even if they have relevant assets at the relevant dates, should not themselves be subject to the Agreement, and this is also true of residuary beneficiaries resident in the UK during the period when the estate is still being administered. This is because while the estate is still being administered, a residuary beneficiary does not yet have a specific entitlement to any Swiss account that may form part of residue.

However, as already mentioned, the 20 March Protocol revised the initial form of the Agreement to impose a 40% withholding tax on the death of individuals who are UK domiciled or deemed domiciled, unless the disclosure route is chosen. Experience shows that, at least in the early years, handling this situation may be more tricky in practice than it might initially seem: some individuals possess remarkably little in the way of paperwork about Swiss accounts and it can be difficult and slow for executors to find out actual details even though, for example, the family is 'sure' the deceased had a Swiss bank account. As always, if a positive choice of the disclosure route is not made in time (within a year of death in this case), the default position is that the Swiss banks will make a withholding. Perhaps paradoxically the Agreement may, over time, help executors as they may find that such accounts are easier to trace, either because disclosure has been made or because they will find among the testator's papers the statement of tax withheld that the bank will provide each year.

Individuals resident in the UK who have become entitled to relevant assets as heirs under a non-English Will (whether as a specific gift or as residuary beneficiaries once the estate has been administered), or through forced heirship, or under a right of survivorship, need to take advice about the effect of the Agreement on their precise position, both to make sure that they comply with the appropriate requirements of the Agreement and to make sure that there is not 'over-compliance' as a result of the Swiss bank not understanding or having sufficient information about the particular position.
UK resident trustees of an onshore trust may not be relevant persons subject to the Agreement but any beneficiary who can be classified as a 'beneficial owner' can be.

There are gradations here. Clearly the beneficiary of a bare trust with relevant assets will be classified as a beneficial owner. Likewise, where the beneficiary has a fixed life interest, his or her status as the beneficial owner seems clear. But there may be instances of trusts where technically beneficial ownership cannot be conclusively ascertained because of discretionary powers of the trustees. If the Swiss bank reaches a conclusion as to who is the beneficial owner which the trustees or beneficiary do not agree with, this may have to be challenged.

Where there is a full-blown discretionary trust (as opposed to discretionary powers), it does not yet seem to be entirely clear whether a discretionary trust itself (as opposed to its beneficiaries or trustees) can count as a relevant person. HMRC's statement that 'discretionary trusts are not excluded from the terms of the Agreement' is, when read in context, ambiguous.

A beneficiary of a discretionary trust may not be classified as a relevant person, but the HMRC FAQs indicate that a payment to a beneficiary could make them a relevant person. If that is so, the historic facts will at least be identifiable, but there may be practical problems with beneficiaries who are non doms and who are likely to receive or may receive a payment in a future year. Such beneficiaries will find that they need to know in advance whether they are going to receive a distribution and its likely size, so that they can give the requisite declaration of intent to the Swiss bank in sufficient time. Unless the trust and the beneficiary have a very settled pattern of existence, trustees will need to try to liaise closely with non dom beneficiaries who may receive a payment in a future year: it may be more than challenging to establish by 31 March in any given tax year both that the beneficiary will receive a payment the following year and that they will definitely be a remittance basis user in that year (particularly given the time limits for the selection of the remittance basis in the UK tax returns). This conundrum will, in particular, increase the need to think ahead when a non dom plans to come to live in the UK.

Trustees will need to be alert to the fact that, if a beneficiary who has been categorised as a 'beneficial owner' dies, then 40% of the affected Swiss assets will be frozen until the tax position has been resolved in relation to the 40% withholding on death agreed in the 20 March Protocol. The usual structure of choices is available: disclose, accept the 40% withholding, or provide (it seems within a year of death) a certificate from an appropriate UK professional confirming that the deceased was neither domiciled nor deemed domiciled in the UK. If no action is taken within the year (which in many practical circumstances could prove to be a tight timescale) the withholding tax will be levied.
Offshore trustees may in addition face some difficulties where withholding tax is applied to sums which come within the categories covered by the Agreement but which, as a matter of trust law, are not income but capital. It is not clear how that would be credited against eventual tax. For such trusts, disclosure may be the preferable route.

Despite its length, this briefing has only sketched an outline of this very complex – and in parts still uncertain – structure. The Permanent Secretary for Tax, David Harnett, has estimated to a Treasury Select Committee that as few as one in five UK residents with investments in Switzerland complies with their UK tax obligations. Add to this the fact that, although the Agreement has as its focus non-compliant individuals, compliant ones are well and truly caught in the side-wind, and the Agreement will become yet another important element that individuals and their trustees will have to factor into their thinking when seeking the best possible practical outcome.

The outcome in each case depends heavily upon two things: one is whether the Swiss banks correctly identify whether there is a 'beneficial owner' and, if so, who it is; the other concerns non doms in particular – whether the Swiss banks have reached a correct understanding in the case in question on whether, for UK tax purposes, assets have a UK source or have been remitted. The Swiss banks will no doubt develop skills in the general application of these rules, but their actual effect in particular circumstances will need close liaison between, and monitoring by, the taxpayer's own advisers and the bank.

GLOSSARY

The Agreement

The Agreement was announced on 24 August 2011, signed on 6 October 2011 and is likely to be effective 1 January 2013. It has been supplemented by, among other things, a series of HMRC Frequently Asked Questions (FAQs), clauses in Finance Act 2012, by the Protocol signed 20 March 2012, and a Mutual Agreement of 18 April 2012.

Relevant assets

The Agreement is framed by reference to 'relevant persons' and 'relevant assets'.

'Relevant assets' basically comprise cash accounts and shares but are more specifically defined in Article 2.1(f) as: 'all forms of brokable assets booked or deposited with a Swiss bank including, but not limited to, the following:

cash accounts and precious metals accounts;
brokable assets held by a Swiss bank acting as a fiduciary agent;
all forms of stocks, shares and securities;
options, debts and forward contracts;
other structured products traded by the banks such as certificates and convertibles.'

Some assets are specifically excluded including contents of safe deposit boxes, real property, chattels and insurance contracts other than 'insurance wrappers' (where the assets are held by an insurance company in an account separate from the insurance company's main accounts on the basis of a contract with minimal risk protection and with the maturity or redemption not being restricted to death, disability or illness).

Relevant persons

The key feature here is UK resident.

Article 2.1(h) defines a relevant person as a UK resident individual who:

'as a contractual partner of a Swiss paying agent, is the account holder or deposit holder and beneficial owner of assets; or
is, in accordance with the conclusions of a Swiss paying agent drawn in line with the prevailing Swiss due diligence obligations and taking into consideration all the circumstances known to it, the beneficial owner of assets held by:
- a domiciliary company (ie legal entities, companies, institutions, foundations, trusts, fiduciary companies and other establishments not exercising a trading or manufacturing activity or another form of commercial operations); or
- an insurance company in an insurance wrapper; or
- another individual by means of an account or a deposit with a Swiss bank.'

It adds the specific provision that an individual resident in the UK is not considered to be a relevant person 'with regard to assets of associations of persons, asset structures, trusts or foundations, if it is not possible to ascertain the beneficial ownership of such assets, eg due to the discretionary nature of the arrangement'.

However, FAQ 1.5 makes it clear that discretionary trusts are not necessarily excluded from the terms of the Agreement. Where a beneficiary has received a payment or another benefit from a trust account, that beneficiary could be a relevant person.

Swiss banks /paying agents

A Swiss paying agent is defined in Article 2.1(e) to encompass banks (as per the 1934 Swiss Banking Act), securities dealers (as per the 1995 Swiss Stock Exchange Act) and 'natural and legal persons resident or established in Switzerland, partnerships and permanent establishments of foreign companies, which accept, hold, invest or transfer assets of third parties or merely make payments of income or gains for third parties or secure such payments in the normal course of their business'. FAQ 1.2 concerns asset managers and whether they are included in this definition, indicating that they are not specifically excluded and, depending on their individual circumstances, may fall within the definition.

For ease of reading, Swiss paying agents are referred to in this Briefing as Swiss banks.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

UK: The UK/Swiss Tax Co-Operation Agreement: Implications For Individuals, Executors, Trustees And Beneficiaries – Even Tax-Compliant Ones