Attorney-at-Law

FOREVER SWISS – PART DEUX

In Uncategorized on 02/19/2020 at 17:42

It’s not cheese this time, rather it’s the Helvetian Confederation itself, ponying up all the bank records they promised for “accounts of interest” per the 2009 deal between DOJ and the descendants of William Tell.

Judge Albert G (“Scholar Al”) gives us the quick peek, via George S. Harrington, Docket No. 13531-18, filed 2/19/20, a designated hitter.

“Pursuant to this agreement the Internal Revenue Service (IRS) submitted to the Swiss Government, under the bilateral income tax treaty between the two nations, a request for information concerning specific accounts believed to be beneficially owned by U.S. taxpayers. The Swiss Government directed UBS to initiate procedures that would lead to turning over to the IRS information in UBS files concerning bank-only accounts, custody accounts in which securities or other investment assets were held, and offshore nominee accounts beneficially owned indirectly by U.S. persons. See U.S. Department of Justice, Press Release, U.S. Discloses Terms of Agreement with Swiss Government Regarding UBS (Aug. 19, 2009), at http://www.usdoj.gov/opa/pr/2009/August/09-tax-818.html. The parties acknowledged that the Swiss Federal Office of Justice would oversee UBS’ compliance with its commitments.” Order, at p. 1.

844 (count ‘em, 844) pages of George’s account statements, correspondence, und so weiter wind up in the paws of DOJ and on to IRS. IRS wants to offer these in evidence, via a motion in limine.

George says they’re hearsay, and UBS’ legal counsel is incompetent to certify to the admissibility thereof.

Judge Scholar Al: “Respondent has submitted with the UBS documents a ‘Certification of Business Records’ executed by Britta Delmas, legal counsel for UBS. Ms. Delmas attached to her certification an index listing 844 Bates-numbered pages as UBS records associated with petitioner. Ms. Delmas avers that these records are original records or true copies of records that: (1) were made at or near the time of the occurrence of the matters set forth therein by persons with knowledge of those matters; (2) were kept in the course of UBS’ regularly conducted business activity; and (3) were ‘made by the said business activity as a regular practice.’ At the bottom of her certification Ms. Delmas ‘declares under penalty of perjury under the laws of Switzerland that the foregoing is true and correct.’

“Having considered the origin and nature of the UBS records along with the certification of Ms. Delmas, we are satisfied that the records are authentic business records of UBS and that they were used and kept in the course of UBS’ regularly conducted business activities. Respondent provided fair notice to petitioner of his intent to introduce them as such. See Fed. R. Evid. 901(11). And Ms. Delmas signed the records ‘in a manner that, if falsely made, would subject [her] to a criminal penalty in the country where the certification is signed.’ Fed. R. Evid. 902(12). Accordingly, we will admit the documents into evidence as self-authenticating foreign business records. See Fed. R. Evid. 801(d)(2), 803(6), 902(11), (12).” Order, at p.2. (Footnote omitted, but read it; Judge Scholar Al says Tax Court likes foreign documents).

Britta may not be the custodian of the records, but all that’s needed is that she’s familiar with the processes; as lead counsel for E-discovery at UBS, that’s enough, says Judge Scholar Al. And of course bank records are more than just account statements. Banks provide all kinds of services, like setting up corporations, trusts, and managing clients’ investments.

George objects to the e-mails going in, but everyone uses e-mails these days. Even maybe when they shouldn’t (but this is a non-political blog).

George says some stuff wasn’t included, but he can proffer whatever he has. For now, the Swiss stuff is the real cheese.

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