AUTOMATIC EXCHANGE OF INFORMATION 2019: AN UPDATE ON DEVELOPMENTS

The EAR, which is expected to quickly become a global standard to combat tax evasion and money laundering, continues to grow in 2019 with the entry into force of multilateral agreements for 41 new States. In addition, the autumn of 2019 will see the first declarations for States whose agreements entered into force on 1 January 2018. Finally, following a decision taken at OECD level, it should be noted that the Federal Council has decided to repeal Article 1 OEAR, which will have a significant impact on the duty of diligence of Swiss financial institutions in jurisdictions that have not concluded an agreement with Berne. Overview of the evolution of the EAR in 2019.

ENTRY INTO FORCE OF EAR AGREEMENTS FOR 41 NEW COUNTRIES IN 2019

In total, the international legal network for the automatic exchange of information now covers some 100 jurisdictions in more than 3,200 bilateral relations now in place, an increase of more than 500 since April 2018.

• For countries whose agreement entered into force on 1 January 2018, the exchange of data will take place for the first time in autumn 2019

• For the 41 new countries whose agreements entered into force on 1 January 2019, data will be exchanged in autumn 2020

The list of States concerned by the RST in 2019 is available HERE.

N.B.: While the RST is progressing internationally to become a global standard in the short term, it is important to note that in Europe, several countries do not have agreements in place: Armenia, Azerbaijan, Belarus, Bosnia, Georgia, Kazakhstan, Macedonia, Moldova, Montenegro, Serbia, Ukraine and the Vatican. In the rest of the world, it is mainly on the African continent and in the Middle East (Lebanon) that there are many states without an agreement. The interesting exceptions for the moment are Taiwan and Thailand.

EAR 2019 : END OF "PARTNER JURISDICTIONS".

At the same time, following a decision by the OECD, the Federal Council confirmed the repeal, as of 1 January 2019, of Article 1 of the Ordinance on the Automatic International Exchange of Information in Tax Matters (OEAR), i.e. the transitional provision relating to "partner jurisdictions". As a reminder, until now, in order to reduce the workload of Swiss banks, the Federal Council, in accordance with the OECD's recommendations, had introduced a provision in the OEAR, Article 1, allowing the States that had undertaken to implement the EAR to be considered as partner jurisdictions. However, the OECD has decided to put an end to this possibility. In addition, Switzerland has decided to strictly follow the OECD recommendations on the implementation of the RST. This is in order not only to contribute to international legal security, but also to work to strengthen the integrity and reputation of the financial centre. As a result, this provision, which relieved Swiss banks of their duty of care, is now repealed as of 1 January 2019.

Repeal of Article 1 OEAR: what are the consequences?

For Swiss institutions, this repeal implies higher due diligence obligations towards courts that have not concluded an agreement with Berne on the automatic exchange of information. However, the Federal Council provides answers to the problems raised by this repeal for national financial institutions.

As a consequence,

• For an account managed as at 31 December 2018, the repeal of Article 1 OEAR leads to a reclassification of professionally managed investment entities, which leads to a change of circumstances. Therefore, the financial institution must obtain self-certification from the entities concerned before 31 March 2019. In the absence of self-certification by 31 March 2019, the account holder shall be treated as a passive NFE. Consequently, the identification of the controlling person(s) and their tax residence becomes mandatory.

• In the event that an account is closed after the change of circumstances and the review of the account is not completed at the time of closing, it shall not take into account the change of circumstances. In addition, if it already has all the information required in a self-certification and it has no reason to doubt the accuracy of this information, it must rely on this information for its account closure statement.

• For accounts opened after 1 January 2019, the ordinary procedures apply.

In this context, Key Findings, a specialist in the search for unclaimed fund holders and working alongside Swiss banks to identify account holders, is able to assist you in your due diligence, particularly with regard to the jurisdictions concerned by the repeal of Article 1 OEAR.

If you wish to relieve yourself of some of the research work related to the application of the EAR, contact us.