DNFBPs. The refusal of the US so far to exchange financial data themselves with their counterparts
forwarding information under the FATCA regime makes the US look a bit hypocritical whenever they
put such a strong accent on the common fight against tax fraud. Other FATF- and OECD-member
states also seem to be much more interested in receiving data rather than delivering it.
From the financial institution's perspective, the issue looks largely different. Even if a financial inter-
mediary is not committing tax fraud or participating in a tax fraud e.g. in Switzerland, due to the lack
of forging a document", there still may be a tax crime in the country of tax residency of the client.
Additionally, in the country of residence of the client, there also may be an accusation of ML being
raised. Even if the foreign tax crime is not a criminal matter in Switzerland, it definitely is a reputa-
tional matter of concern and a supervisory issue. FINMA will raise the question of fit- and properness
of directors involved in criminal investigations in other countries. Additionally, FINMA might raise
the question of a breach of the guarantee of an irreproachable business conduct (garantie de l'activité
irréprochable, Gewühr für eine einwandfreie Geschiftstitigkeit).'”
Since most countries have pledged to prosecute or at least facilitate the prosecution of clients abusing
their financial markets by committing tax crimes, the supervisory authorities of these countries expect
the financial institutions and DNFBPs to file a suspicious transaction report (STR) or a SAR concern-
ing existing non-tax-compliant clients at the time tax crimes become predicate offences to ML. But
because these STR and SAR have an impact on the reputation of the reporting entity, the conse-
quences of tax crime becoming predicate offence to ML have a much earlier impact on the client rela-
tionships of financial institutions and DNFBPs, as shall be explained below in chapter 3.5.
19 Forged documents are a physical element of the offence of tax fraud according to Art. 186 Federal Act on
direct federal taxation, the whole text of this Act is available in German from
https://www.admin.ch/opc/de/classified-compilation/19900329/201601010000/642.11.pdf, accessed on April 10,
2016.
192 As explained by Prof. Dr. Xavier Oberson during his presentation on “Money laundering, taxation and auto-
matic exchange of information”, given at the premises of Vontobel Swiss Wealth Advisors SA, Geneva, on De-
cember 15, 2015.
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