Most Read Contributor in Switzerland, February 2017
The Swiss Supreme Court ruled in a decision of February 13, 2017
(published two days ago) that the Swiss Federal Tax Agency (SFTA)
must provide its counterparts in France with certain information on
a UBS bank customer, although French request for international tax
assistance is likely based on data stolen in France.
In 2013, the French tax authorities had posed such a request on
a number of UBS customers who had banking relationships with UBS in
Switzerland and - allegedly - did not properly disclose income and
wealth vis à vis the French tax authorities. In October
2014, SFTA approved this requests for international tax
A French citizen residing in Switzerland did not accept the
transfer of his banking data and complained, amongst other things,
that the French request was based on stolen data as a former
marketing agent for UBS in France had collected a list of 600
customer names and sent it to the French tax authorities in
"In the view of the Swiss Federal Supreme Court, the
"fruit of the poisonous tree"- doctrine applies only to
data thefts committed in Switzerland and not to those
In September 2016, the Swiss Federal Administrative Court
rejected the international tax assistance approved by SFTA two
years earlier as the French tax authorities' request - by using
the stolen bank data - infringed the principles of good faith as
implicitly contained in the Double Taxation Treaty between
Switzerland and France.
The Swiss Federal Supreme Court now assessed the situation
differently. It concluded that the Double Taxation Treaty between
Switzerland and France should be interpreted strictly, so it has no
basis for refusing the international tax assistance. In arguing so,
the Federal Supreme Court had to disregard the Swiss Tax Assistance
Act of 2013, saying specifically that stolen data must not be used
in international tax assistance procedures. Yet, in the view of the
Swiss Federal Supreme Court, this "fruit of the poisonous
tree"- doctrine applies only to data thefts committed in
Switzerland and not to those abroad. Otherwise, so the court's
argumentation, this provisions would have an extraterritorial
effect, what would have violated the Swiss legislators'
intention under the Swiss Tax Assistance Act of 2013.
"The Federal Supreme Court had to disregard the Swiss
Tax Assistance Act of 2013, saying specifically that stolen data
must not be used in international tax assistance
In the present case, the bank data were collected by former UBS
employees in France who wanted to put an end to illegal tax
practices of the bank. According to the Swiss Federal Supreme
Court, it remained unclear as to whether thge theft committed
abroad was indeed given. Conversely, it was evident that UBS bank
employees in Switzerland were not involved in the data collection,
so a criminal behavior committed in Switzerland was not given, and
therefore the conduct of the foreign UBS-employees could not be
regarded as a violation of Swiss bank secrecies.
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