On July 17, 2019, the US Senate approved the long-overdue 2009 protocol to the Swiss-US double tax treaty, the core element of which concerns administrative assistance.

Formally, the protocol will enter into force once the instruments of ratification are exchanged, which is likely to happen in the course of the coming months.

Key provisions of 2009 protocol

Most notably, the protocol brings the following changes:

• It will allow the US to make group requests under FATCA concerning non-consenting US accounts and non-consenting NPFFIs. While it remains to be seen when the IRS will start submitting these group requests, affected Swiss financial institutions should prepare the relevant data now. Once the Swiss Federal Tax Authority receives the group requests and forwards them to the financial institutions, the financial institutions only have 10 days to respond and deliver the data.
• Further, the protocol generally erases the differentiation between tax evasion and tax fraud in the context of administrative assistance and will also apply to other types of information requests, e.g. the ones made by the US in connection with data that was provided to the US DOJ in the context of the Swiss bank program.
• For pillar 3a solutions, it will provide for a withholding tax exemption in relation to dividends from US stocks (while they currently suffer a 15 % withholding tax).
• It implements dispute resolution through mandatory binding arbitration, in case the competent authorities cannot conclude in the mutual agreement procedure.

Outlook

The approval of the protocol finally paves the way for negotiations about future revisions of the treaty, most notably a potential withholding tax exemption for qualified dividends to corporate shareholders, which would make Switzerland an even more attractive location for US multinationals.

By: Robin King, Senior Manager and Marnix Kippersluis, Senior Consultant, Financial Services Tax.

Brandi Caruso - Partner, Financial Services Tax 

Brandi heads the Tax Transparency offering within the Financial Services Tax practice across Switzerland, responsible for services related to QI, 871(m), FATCA, CRS, and DAC6. She is a technical advisor and a subject matter expert to a number of Swiss-based trust companies and banks and leads the Deloitte Trust Forum. She has more than 15 years of experience with Deloitte in the US, UK, and in Switzerland.

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Karim Schubiger – Director, Financial Services Tax 

Karim leads the Tax Transparency team in the Suisse Romande and Ticino markets within the Financial Services Tax & Legal practice, responsible for services related to QI, FATCA, CRS, 871(m) and DAC6. He is a technical advisor and subject matter expert to financial institutions in the banking, trust, and insurance sectors. Prior to joining Deloitte, Karim worked for eight years in support teams of Swiss banks, in particular in areas such as operations, project and change management as well as operational taxes.

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Robin King - Senior Manager, Financial Services Tax

Robin is a Senior Manager working in Financial Services Tax. He is currently advising leading Swiss universal and private banks, acting as subject matter expert in the area of QI, FATCA , CRS and DAC6. Robin is the author of several articles on CRS. Prior to joining Deloitte, he worked as a cross-border tax compliance expert at a Swiss private bank.

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Marnix Kippersluis - Senior Consultant, Financial Services Tax

Marnix is a Senior Consultant in the Financial Services Industry Tax team in Zürich, where he advises international financial institutions on the implementation and interpretation of FATCA and CRS and DAC6 regulations. Marnix holds a Master of Law degree from Utrecht University, the Netherlands.

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