2 2 Annual Report 2012/2013 Contents Chairman s Foreword 4 Reports from the Commissions 40 The Swiss financial centre What the future holds for banks more 8 Financial Services Act Improving information and transparency without a Swiss finish more 16 EMIR European Market Infrastructure Regulation more 30 Areas of Responsibility within the Office 48 Association Business 52 Accounts 56 Organs of the Swiss Bankers Association 64 Bank Institutions 68 Utility Infrastructure Providers, Associations and Federations 76 contact Foreign Account Tax Compliance Act (FATCA) Data hunger is becoming the international standard more 24 Corporate taxation The end of tax planning? more 34 The Swiss Bankers Association 84 Video
3 4 Annual Report 2012/2013 Chairman s Foreword Patrick Odier Dear Reader Reading the headlines over the last twelve months, one could have the impression that the Swiss financial centre is doomed. I do not deny that we are facing major challenges. The efforts to newly position the banks in Switzerland demand our full attention, but there are many bright spots as well. This annual report addresses several future initiatives which are very promising. Let me begin by briefly outlining our future strategy again here. Fiscal compliance, regularisation, legal certainty, market access all of these issues are addressed day after day in the media, are hot topics for our politicians and have us all on tenterhooks. What was true yesterday is no longer true today, and by tomorrow it will already be forgotten. So, it makes sense to summarise again what we are trying to achieve strategically. Our overriding goal is to strengthen the financial centre as a whole so as to preserve and create additional jobs and added value in Switzerland. To succeed at this, the general framework conditions in the areas of taxation, regulation and supervision have to be such that they support the growth of the Swiss financial centre for both domestically and internationally oriented banks over the long term. A tax-compliant financial centre is just as necessary as market access, in particular access to the European Union (EU) internal market, in order to be able to serve clients across borders without any additional restrictions. The banks defined these goals and conditions in 2009, and they still apply today. What has changed during this time is the means used to realise this strategy. Fair competition through global standards In many different tax-related issues it is becoming ever more apparent that an automatic exchange of information (AIE) in one form or another is at the centre of developments. This is the case with FATCA (Foreign Account Tax Compliance Act), for example, but also within the EU, where there are no longer any countries categorically opposed to an automatic exchange of tax information. However, at the time this annual report was published, it was still unclear who will exchange what information with whom and under what conditions. The AIE, as it is so efficiently called in technocrat speak, is at present hardly more than a political buzzword and is still far from being a fiscal reality or a global standard. Recent statements made would have us surmise that the Organisation for Economic Cooperation and Development (OECD) is resolutely working at full speed to formulate standards of information exchange. Switzerland, as a founding member of the OECD, must actively work to ensure that these standards are formulated in line with the principles of legal certainty, competitive neutrality and transparency. In the interest of fair competition, anonymous structures that can be used to avoid taxation also have to be addressed on the basis of beneficial ownership. If a global standard of automatic information exchange is created which is oriented on these principles, even Swiss banks will be willing to participate. Legal certainty for clients, employees and banks The discussion about increased transparency with regard to taxation is an issue that Switzerland must address right now, especially in its relationship with the EU. We support taking a proactive approach towards Switzerland s European neighbours and are prepared to implement measures, as part of an agreement on the taxation
4 6 Annual Report 2012/2013 of interest, which are equivalent or even identical to those in force in the EU. However, in return, a bridge leading into tax compliance must be established for EU clients, which may offer different opportunities depending on the country. Germany, for instance, offers voluntary self-disclosure without penalty; other EU member states, such as Spain and Belgium, have amnesty programmes in place; the UK and Austria have regularised all assets through a withholding tax agreement. In the tax dispute with the US, legal certainty is a central point both for clients and for the banks and their employees. In view of this, the decision of the Federal Council to take responsibility by establishing guidelines for the cooperation between banks and the US is to be welcomed. Switzerland cannot go it alone Switzerland should not take a unilateral approach that isolates us and could potentially seriously impair our competitiveness. Developments at EU and OECD level have to be given consideration. Consequently, Switzerland should focus on contributing to and observing international standards. Efforts towards a Swiss finish should be abandoned, however. We therefore demand that work be stopped on the Federal Council s proposal to introduce enhanced due diligence obligations aimed at preventing the receipt of untaxed assets. Because if client data is going to be provided to the responsible authorities in the tax domicile of the client, then it is not necessary to put even more responsibility on the banks to clarify the client s tax compliance. That task is the responsibility of the tax authorities in the client s country of domicile. This also applies should Switzerland agree to an automatic exchange of information with other countries. It does not make sense to implement legal provisions that will become obsolete in the near future. It is also out of the question that Swiss banks be required as part of their due diligence to retrospectively clarify old client holdings and report them to foreign tax authorities or even be forced to dissolve client relationships. Access to the EU market is a prerequisite for growth Growth of the financial centre remains the overriding strategic goal regardless of what taxation problems have to be solved. In our opinion, the condition for this market access is being put at risk by the increasing ten- dency of the EU to isolate itself from third countries. In our view, it is therefore imperative that along with the tax issues, non-discriminatory regulations regarding third-party countries be agreed under MiFID II (Markets in Financial Instruments Directive), AIFMD (Alternative Investment Fund Managers Directive) and EMIR (European Market Infrastructure Regulation). Our government has to actively approach the EU on this issue. It is the goal of the banks to have an agreement with the EU that regulates the provision of cross-border services in place by the medium term. The Swiss banks are conscious of the fact that in the political relations between Switzerland and the EU, institutional questions acceptance of EU rights and obligations, their interpretation and monitoring, and resolution of disputes first have to be answered. However, improving access to the EU market is vital for long-term, stable growth and a healthy Swiss financial centre. The challenges and workload facing us in the past business year were more demanding than ever. I would like to thank Claude-Alain Margelisch and everyone at our offices for their outstanding work and tireless efforts. I would also like to express my appreciation to the many specialists of the banks who in addition to their regular responsibilities also participated in the committees and working groups of the Swiss Bankers Association (SBA). Patrick Odier, Chairman
5 8 Annual Report 2012/2013 The Swiss financial centre What the future holds for banks
6 10 Annual Report 2012/2013 Everyone is talking about the financial centre. Most of the talk is focused on the problems and challenges. The financial centre, however, has still so many things going for it. In today s extremely strained economic environment, the stability of Switzerland and the excellence and breadth and depth of the services offered by Swiss banking are needed now more than ever. Naturally, a global financial centre can never simply rest on its laurels. It has to constantly develop new areas of business and expand existing ones. Two areas in which Swiss banking wants to grow in future are discussed below.
7 12 Annual Report 2012/2013 Commodity trade financing Growing economic importance The strong rise in commodities trading is important for the further development of welfare in Switzerland. This is why regulation in this country should not be more rigorous than elsewhere. Martin Hess Head of Economic Policy Some of the world s major trading centres are located in Switzerland in Geneva, Zug and Lugano. Not surprisingly, this sector thus makes a significant contribution of 3.6% to Switzerland s gross domestic product (GDP). Importance of the banks Commodities trading is a very capitalintensive business. Proximity to a successful financial centre with expertise in trade finance is therefore a special competitive advantage of Switzerland. Banks typically use short-term trade credits to cover the financing needs of traders for the purchase, transport and price hedging of commodities. In the last ten years, investments in commodities in the form of physical holdings and as futures contracts have increased significantly. In asset management, commodities have become established as a separate asset class owing to their advantageous diversification properties and the good protection they offer against inflation. The liquidity generated in this business area secures the efficient functioning of the commodities markets and permits commodities traders to hedge market risks as necessary. Regulation under scrutiny With the growth of commodities trading as a business segment in Switzer- land and the reports of irregularities in resource production, more and more critical voices are being heard. In parliament, numerous motions have been submitted about commodities. Given the controversy in the political debate and the major importance commodities trading has for Switzerland, there is a big need for hard facts. To facilitate fact-based political discussions, the SBA produced a report explaining the significance and function The banks voluntarily submit themselves to restriction beyond regulatory requirements in the commodity trade financing activities. of the commodity trading sector in Switzerland and the role that the banks play in it. Banking activities, including commodity trade financing, are subject to a strict regulatory framework with respect, for example, to capital and liquidity requirements and money laundering regulations. The banks in Switzerland have an inherent interest in avoiding illicit transactions, and they therefore voluntarily submit themselves to additional restrictions in their commodity trade financing activities. In a paper published at the end of March 2013, the Swiss Federal Council underscores that the competitiveness of the commodity trading market has to be secured. With regard to regulation, the Federal Council pleads for voluntary standards within the industry. Correctly so. Given the global dimensions of the business in question, the SBA finds it essential that the corresponding regulation in Switzerland is not made more rigorous than that applicable at commodity trading centres elsewhere. This is the only way this sector will be able to continue to make a significant contribution to the Swiss economy in future. An interview with Martin Hess
8 14 Annual Report 2012/2013 Asset management Promoting Switzerland as a business location The attractiveness of Switzerland as a location for asset management should be strenghtened in a sustainable way. A white paper identifies according areas for action. Peter Grünblatt Senior Asset Management Project Leader The asset management is a pillar of Switzerland s financial centre. Overall, assets under management in this field of business totalled around CHF 2,500 billion at the end of Of this, about CHF 1,500 billion were assets belonging to institutional clients and more than CHF 450 billion were assets of investment funds managed in Switzerland. Working paper on asset management With the intention of further strengthening asset management in Switzerland on a foundation of trustworthiness, independence and quality and of making Swiss asset management better known internationally, the SBA and the Swiss Funds & Asset Management Association (SFAMA) published a white paper on asset management in Switzerland at the end of Switzerland offers very good framework conditions as a location. It is characterised by economic and political stability, openness, an attractive, reliable tax regime, a large domestic market, good infrastructure, a large number of welleducated people and a generally high quality of life. However, the white paper identifies a need for action to sustainably enhance the attractiveness of Switzerland as an asset management location. Adequate supervision is vital Providing for adequate supervision is essential especially considering the overriding topic of market access. There is no concrete set of rules regulating asset management as a function in Switzerland. Instead it is regulated in the legal provisions applicable to institutions (the Banking Act, the Insurance Act, circulars published by the supervisory authority) and products (the Collective Investment Schemes Act). The initiative strives to establish a uniform approach for all market participants banks, insurance companies, investment fund management companies, pension funds, investment foundations and independent asset managers. The regulatory framework has to be based on professional standards of management, codes of conduct and impeccable procedures and processes and must be efficient, transparent and internationally recognised and accepted. Broadly based initiative Although launched by the SBA and SFAMA, this is an initiative for the Swiss financial centre. Now pension funds, insurance companies, investment foundations and independent, non-bank asset managers are all working on the implementation of the initiative. A steering committee made up of representatives of these stakeholders has been monitoring the progress of the initiative since the middle of the year. The Asset Management Switzerland brand as a vision The long-term goal is to create an Asset Management Switzerland brand with a global reach. Credible value propositions should make clients want to have their assets handled by an asset manager in Switzerland and make providers want to set up their asset management operations in Switzerland. Federal government working group Parallel to this, a mixed working group of the federal government, led by the State Secretariat for International Financial Matters (SIF), and representatives of the Financial Market Supervisory Authority (FINMA), the Federal Tax Administration (FTA), the Federal Department of Finance (FDF) and the SFAMA along with the SBA are addressing the issues of market access, supervisory and licensing practices and tax questions.
9 16 Annual Report 2012/2013 Financial Services Act Improving information and transparency without a Swiss finish
10 18 Annual Report 2012/2013 The federal government is preparing a Financial Services Act ( Finanzdienstleistungsgesetz, FIDLEG) which is designed to be a support to investors in their decision-making. The SBA generally welcomes the effort but also has some reservations. Christoph Winzeler Head of Financial Market Law The first major milestone on the way to the FIDLEG was the publication of the consultation report of 18 February 2013, which examines the potential directions of the planned undertaking. The SBA basically supports a moderate standardisation and extension of Switzerland s financial market supervisory law. The goal should be to support investors in their decisionmaking while also securing market access in Europe and other regions for providers. Naturally, Swiss law alone cannot guarantee the latter, but it is a first and necessary step on the path to conducting successful negotiations on the subject. The approach taken in the FIDLEG should not be based primarily on prohibition, restrictions and paternalistic tactics, but instead focus on enhancing investor protection in a targeted manner where sensible and eliminating redundancies (comparing the Swiss Code of Obligations, the Stock Exchange Act and the Collective Investment Schemes Act, for example). This approach is consistent with the concerns of banks which are globally active as well as those oriented on domestic business. In accordance with Switzerland s successful tradition, the legislation should only seek uniformity where necessary and otherwise leave the field open for innovative, creative business models. Confine FIDLEG to securities services FIDLEG should confine itself to securities services including asset management and investment advisory. It should not address other financial services such as interest margin transactions, insurance products or commodity transactions. This is consistent with the MiFID approach, which should not be taken to the extreme by adding a Swiss Finish. This would also allay fears in the insurance sector that it may be made subject to regulation that is unnecessary from its point The legislation should only seek uniformity where necessary and otherwise leave the field open for innovative, creative business models. of view, as FIDLEG would only apply to the insurance sector in instances where it offers asset management products.
11 20 Annual Report 2012/2013 does not need to meet the capital and liquidity requirements of a bank. This approach is also likely to facilitate agreement among all those concerned. No redundancies All regulatory matters relating to point of sale should be dealt with exclusively in FIDLEG; the Collective Investment Approval requirement for all financial service providers The SBA finds it essential that all financial service providers including asset managers, independent wealth managers and investment advisors be required to obtain approval from FINMA to do business. Asset managers and banks offer comparable services in the core area of their respective businesses. Treating them differently under the law distorts competition. FINMA must therefore be in the position to revoke an asset manager s license to operate in the event of serious violations of the duty of proper business conduct or the principles of self-regulation prescribed by the industry association. Supervision of the industry should be modified, however, to take account of the industry s special circumstances, include FINMA must therefore be in the position to revoke an asset manager s license. reasonable de minimis regulation and provide scope for effective self-regulation. For example, an asset manager Uniform professional obligations among financial service providers The SBA recognises a certain need for action with regard to the obligations of financial service providers with respect to information, documentation and prospectuses. The currently applicable requirements originated over a broad span of time and are scattered across a variety of sources (Swiss Code of Obligations, the Stock Exchange Act, the Collective Investment Schemes Act, and the rules of self-regulation of the stock exchange, the SBA and the SFAMA). SBA would like to see these obligations be standardised, where and to the extent that standardisation serves a genuine purpose. However, a Swiss finish in the form of a hurried move to incorporate and go beyond EU law must be avoided under all circumstances. The challenges that such updating represents should not be underestimated. Therefore, the SBA has proposed in its statement that this demanding task be entrusted to a working group in which experts from the industry participate. Regulatory matters relating to point of sale should be dealt with in FIDLEG. Schemes Act should be limited to aspects of product regulation. Regulatory redundancies should be conscientiously avoided. No new educational systems In order for FIDLEG to fulfil the objective of improving client protection effectively and efficiently, it must, to the extent possible, build on the existing, well-functioning and qualitatively recognised banking apprenticeship and training systems. In particular, it should be ensured that the federally recognised basic banking training programmes continue to remain a foundation for a profession in the banking sector.
12 22 Annual Report 2012/2013 Unacceptable proposals in the area of civil procedural law The SBA is strictly against proposals involving civil procedural law which overshoot the target. The recognised purpose of regulation is fully achievable with the improvements in information and transparency mentioned above. The appropriateness of fartherreaching regulation is questionable, The targeted information and transparency rules will put investors in the position to act on their own responsibility. rules will put investors in the position to act on their own responsibility, eliminating the need for further crutches in civil procedural law. Await the revised MiFID The government s official message on FIDLEG should not be issued until clarity on the regulation of the pertinent questions in the revised MiFID has been reached. It does not make sense to harmonise Swiss law with an EU project where essential points are still uncertain. Also, the technical aspects have to be carefully addressed together with experts in the field, within the framework of a mixed working group, for instance. From the point of view of the SBA, the draft bill does not necessarily have to be issued this year. The position of the SBA in a nutshell Refrain from prohibition, restrictions and paternalistic tactics; focus on information and transparency rules facilitating independent decision-making by responsible investors Apply a FINMA approval requirement to all financial service providers, including wealth managers in particular Have an enforceable code of professional obligations for all financial service providers Confine the law to securities services, including asset management and investment advisory Consequently, limit CISA to product regulation and eliminate existing redundancies In civil law, do not shift the burden of proof regarding a financial service provider s observance of professional obligations No obligation to cover the litigation costs of a client who, on the strength of the opinion of the ombudsman, files a claim against a financial service provider Do not endow the ombudsman with the right of verdict the ombudsman should be allowed to continue to focus on his role of being a successful mediator such as shifting the burden of proof regarding the financial service provider s observance of professional obligations, assuming the litigation costs of a client who, on the strength of the opinion of the ombudsman, files a claim against the financial service provider, or the ombudsman s right of verdict (which would impair his ability to mediate). The targeted information and transparency
13 24 Annual Report 2012/2013 Foreign Account Tax Compliance Act (FATCA) Data hunger is becoming the international standard
14 26 Annual Report 2012/2013 A little kitten born in the US three years ago turned out to be a tiger with a huge appetite an appetite for data. When the US passed FATCA into law in 2010 it received only scant attention. But as quiet and as stealthy as cats can be, they are also independent and very skillful. FATCA is today a number-one priority on the agendas of the summit meetings of the G-20, the EU Council of Ministers and the OECD. Major countries have resolved to establish an international reporting system for banking data. FATCA is the foundation and the engine of this effort. Urs Kapalle Head of Federal Finance & Tax Policy Economically sensible tax policy? It is questionable whether this has still anything to do with efficient tax policy. Client books have to be searched according to the new rules to identify the clients subject to taxation in the US. Electronic data processing has to be modified substantially and new reporting systems have to be developed. The European Banking Federation (EBF), which represents around 5,000 banks in Europe, estimates the cost of implementing FATCA at about 10 US dollars per account. Assuming each of the approximately 500 million inhabitants in the EU has one bank account. How much is 10 US dollars times 500 million? The US has estimated that the additional tax revenues for itself resulting from FATCA will total around USD 870 million over a ten-year period. Estimates can be unreliable, as anyone knows who has ever had to produce one. But one thing is clear: the costs of implementing FATCA throughout the sector will exceed the tax revenues generated for the US government. FATCA is highly complex legislation, yet can be explained in just two sentences. FATCA requires financial service providers worldwide banks, insurance companies, investment funds, pension funds, etc. to supply the US tax authorities with data on clients who are subject to taxation in the US. If they don t report the requested data, a withholding tax of 30% automatically applies to all earnings and capital gains on US securities. Conclusion of bilateral agreements Over the last ten months, over two dozen countries have negotiated bilateral agreements with the US for implementing FATCA including Germany, France, Italy, the UK, Spain, Ireland, Denmark, Singapore and Switzerland. None of these internationally important financial centres wants to be excluded from the US capital market in future. The agreements aim at facilitating the implementation of the FATCA rules, on the one hand, and ensuring the principle of legal certainty, on the other, so that financial service providers do not simply have to submit themselves to US law, over which they have no direct influence. Doch die Schwestern begannen nun, ihren toten Gatten zu beweinen, und als sie
15 28 Annual Report 2012/2013 Worldwide FATCA standard An essentially correct question is of no use if it is asked at the wrong moment. Given governments empty coffers, the need for austerity measures and feeble growth forecasts, the governments of the G-20 countries are not interested in questions of efficiency or protecting the privacy of their citizens. FATCA is being heralded as the solution to tax evasion. Originally conceived as a reporting system for information from abroad to the US, the OECD in Paris is now working on a FATCA standard that can be applied worldwide. The OECD recognised that the EU countries that are cooperating on FATCA want to first examine the data for their own purposes before forwarding them to the US. At the same time they want access to the data on their own citizens that the US can provide, and they will promise to share information with each other about taxpayers from the other participating EU countries. To achieve this, they are building on the technical solution for FATCA. The following graph illustrates the planned electronic data hub based on the FATCA platform: USA F UK SIR SIR: secure intelligent router The data from the electronic containers of the individual countries would be made available to all participating countries via a secure intelligent router. This would permit the data to be distributed, compared and evaluated in any way the respective authorities might see fit. Naturally, limits would be set by the data protection laws to which the authorities are subject. Switzerland is not participating in this electronic data hub. Switzerland negotiated a Model II FATCA Agreement with the US which excludes the mutual exchange of data. FATCA agreement between Switzerland and the US The SBA is sceptical about FATCA but nevertheless supports the FATCA agreement recently concluded between Switzerland and the US. Is that true? I D Yes, that s correct. It s a purely rational, pragmatic decision. More than 45% of all shares, bonds and other securities originate in the US. And the US has the largest capital market in the world. Switzerland s highly diversified, internationally oriented financial centre cannot afford to not provide clients with services and transactions in their business with the US. Of the approximately 320 banks in Switzerland, around 120 are foreign banks. These are subsidiaries or branches of foreign banking institutions which have consciously chosen Switzerland as a location from which to conduct their operations. Our own internationally oriented big banks and various private banks have a strong foothold in international business as well. Even Switzerland s domestically oriented banking segment, which includes regional and cantonal banks, provides US securities transactions to Swiss clientele. And last but not least, insurance companies, fund management companies and countless pension funds in Switzerland also invest in the US market. Switzerland s financial sector would implement FATCA even if no agreement were to be concluded with the US. However, the agreement offers certain advantages that benefit the entire sector. For example, all of Switzerland s retirement benefit schemes are exempt from the FATCA regulations. That is around 2,000 pension funds, which represent approximately 4.8 million insured employees and pensioners. Under the agreement, the punitive 30% automatic US withholding tax will not be applied to any financial institution in Switzerland be it the approximately 200 insurance companies, 320 banks or more than 1,000 investment funds. Further exemptions and exceptions are also foreseen for regional banks, wealth managers and non-life insurance business. FATCA is a reality. It s best not to tread too hard on this tiger s tail.
16 30 Annual Report 2012/2013 EMIR European Market Infrastructure Regulation
17 32 Annual Report 2012/2013 The European Market Infrastructure Regulation (EMIR) is intended to improve the transparency and stability of the OTC market for derivatives and prevent new hazards with the potential to lead to a crisis arising in this area in future. Renate Schwob Head of Financial Market Switzerland EMIR requires financial institutions and non-financial companies to 1) settle their standard OTC derivatives via central counterparties (CCPs) and 2) report these transactions to a transaction registry (TR) for registration purposes. OTC transactions not settled via CCPs must be subject to risk mitigation measures and have to be monitored. Equivalence test for central counterparties from third countries EMIR also establishes a legal framework for the regulation of central counterparties and transaction registers. An equivalence test applies to CCPs domiciled in third countries: A CCP approved in a third country has to fulfil legally binding requirements that comply with the EMIRstipulated requirements. The CCP has to be subject to effective, continuous supervision in the third country, and effective means of legal enforcement must be ensured. The legal framework of the third country in question must provide an effective, equivalent system for approving CCPs domiciled in that country. Similar conditions apply to TRs. In addition, TRs must also be able to guarantee professional secrecy. This is somewhat surprising when one considers all the parties who are supposed to be able to access the data stored in a TR. The equivalence test is carried out by the European Securities and Markets Authority (ESMA), which submits its findings to the European Commission. Exceptions for internal group transactions The EMIR makes exceptions for internal group transactions. This is extremely important, as transactions within a given corporate group are freed from clearing obligations. Market participants in Switzerland who conduct such transactions with group companies in the EU can only benefit from these exceptions, however, if Switzerland has passed the equivalence test. Given the costs incurred by market participants as a result of the CCP clearing requirement, these exceptions are very important. Transactions by non-financial companies are only subject to clearing requirements if they exceed a given threshold. Financial market infrastructure law as the basis of equivalent regulation Clearing and settlement are not regulated under Swiss law. Therefore, the FDF decided to integrate parts of the the Stock Exchange Act into a new financial market infrastructure law. The mandate of the federal government working group to which this task was assigned is to devise such a regulation that will ensure the competitiveness of the Swiss financial centre and strengthen the stability of the financial infrastructure. At the same time, the regulation should be equivalent to the corresponding EU regulations so as to ensure that Swiss market participants have access to the EU markets. The FDF plans to initiate the consultation procedure on the new financial market infrastructure law in autumn 2013 and formulate an official message on the issue in spring of If the bill is passed by both houses of the Swiss parliament in 2014, the new law could come into force as early as the beginning of
18 34 Annual Report 2012/2013 Corporate taxation The end of tax planning?
19 36 Annual Report 2012/2013 The ordinary corporate income tax rate is 33.3% in France, 24% in the UK and 35% in the US. However, international corporations in these countries effectively pay much less in tax. It is not uncommon for corporate income tax rates as low as 12% or less to be reported in the media. Some large industrialised countries have waited too long to take measures to ensure the competitiveness of their economies, and companies domiciled in these countries are taking advantage of (legal) tax-planning opportunities abroad. Urs Kapalle Head of Federal Finance & Tax Policy In 1998, an OECD report on harmful tax competition defined what was then understood as competition-distorting tax rules. In a follow-up OECD report in June 2000, a list of 47 harmful tax systems in OECD member countries was published, including Co-ordination Centers in Belgium and International Financial Service Centers in Ireland. All the tax-optimising systems on the list have since been done away with, but by far not all of the other tax planning possibilities available. On the contrary, new ones have evolved. BEPS as a way out of the dilemma Various large industrialised countries have long neglected taking the reform steps needed to improve their competitiveness. Instead they have sought to solve their budget problems by hiking value added tax. But this measure puts the brakes on consumption and hampers the economic growth so desperately needed. Today, the governments of these countries with the support of the OECD and the G-20 are focusing their attention on multinational companies tax planning. For this purpose, last year the OECD joined forces with the G-20 to launch a project called Base Erosion and Profit Shifting (BEPS). The aim of the project is to fight against the practice of shifting profits to countries where tax rates are low and against the systematic exploitation of differences in taxation law. BEPS and Switzerland Businesses in Switzerland are also affected by BEPS specifically, companies to which the usual tax regulations for holding and management companies in Switzerland apply, because these regulations are not compatible with the rules under BEPS. Around The OECD and the G-20 are focusing their attention on multinational companies tax planning. CHF 5 billion of the corporate income tax paid in Switzerland every year is thought to come from such companies. These companies bring benefits to Switzerland in various ways for instance, the financial
20 38 Annual Report 2012/2013 sector benefits by being able to provide them with financing and financial services. Switzerland should find ways to work constructively on BEPS issues. Putting a stronger focus on taxation at the source of wealth creation as the project is endeavouring to do does not represent a disadvantage for Switzerland. In contrast to offshore locations, a lot of wealth is generated in Switzerland. It is important, however, that Switzerland insists that BEPS remain restricted to the framework as officially communicated. The rules of tax competition It is important that BEPS remain restricted to the framework as officially communicated. tries by means of freely determined tax rates must remain possible. The objectives of the BEPS project in a nutshell Hybrid instruments: Prohibition on arbitraging differing rules. Example: the same balance sheet item may be treated in a company s home country as equity, while in the country where the company s subsidiary is domiciled it can be treated as a loan. This results in a double savings effect: the interest payable on the loan by the subsidiary is tax-deductible, and the parent company s income from its associated company is exempt. Transfer prices within a group: The international rules on transfer prices within corporate groups should be amended to prevent undesired fiscal outcomes. Digital products and services: International tax law in this sector needs to be revamped. Group financing: External financing motivated by tax considerations (interest on loans is tax-deductible) should be curtailed and group financing transactions carefully examined. Tax regimes: Tax regulations that explicitly favour certain companies should be restricted, mainly by means of greater transparency and proof of real operations. Rules on misuse: In addition to the above measures, more effective sanctions in the event of misuse should be introduced. must not be allowed to be changed unilaterally in favour of certain especially influential countries. Furthermore, tax competition among coun-
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