QI Account Management System Open for QI Certifications

On 4 May 2018, the Internal Revenue Service (“IRS”) updated the QI account management system and is now officially accepting QI, Withholding Partnerships (“WP”), and Withholding Trusts (“WT”) Certifications. Additionally, the IRS has announced that all QIs, WPs, and WTs must select the Periodic Review year of their certification before 1 September 2018. Please note that this deadline is also applicable for QIs, WPs, and WTs that have selected 2017 as their Periodic Review year.

Details to QI/WP/WT Periodic Review Waiver Applications

The IRS included details about Periodic Review waiver applications in its announcements, stating that all QIs, WPs, and WTs that wish to apply for a waiver must select 2015 as their Periodic Review year, complete Parts I – III of the certification, and submit its waiver application before the 1 September 2018 deadline. If the waiver application is accepted by the IRS, the QI, WP, or WT is not required to perform the Periodic Review. The acceptance or denial of a waiver application will be communicated by the IRS. If a waiver application is denied with less than six months remaining (including extensions) for the QI/WP/WT certification, then the QI, WP, or WT will be granted an additional six-month extension from the date of the waiver application denial, allowing for sufficient time to conduct the Periodic Review and resubmit a certification. Please note that if a QI/WP/WT has had its waiver application denied, the Periodic Review year is 2015. If such a QI/WP/WT wishes to select another year for the Periodic Review, the IRS FI team should be contacted at lbi.fi.qiwpissues@irs.gov. Once the Periodic Review is conducted post waiver denial, the resubmitted certification should include Parts IV and VI (if applicable).

Additional Information

The IRS has updated its certification and Periodic Reviews FAQs. Please refer to this link for access to the current FAQs.

Additionally, QIs, WPs, and WTs should consult Publication 5262 (the QI User Guide) before beginning their certifications, if needed. Publication 5262 can be accessed under this link.

Contact

Bruno Hollenstein
Partner, Operational Tax
+41 58 792 43 72
bruno.hollenstein@ch.pwc.com

Blockchain Taskforce makes recommendations to strengthen Switzerland as an international blockchain hub

At this year’s Blockchain Summit on 26 April 2018 in the heart of the well-known Crypto Valley in Zug, Federal Councilor Johann Schneider-Ammann received a white paper on the topic “Strengthening Switzerland as a Blockchain Hub” and a position paper on the legal classification of ICOs. The publications were written by the Blockchain Taskforce, a group of around 50 personalities from politics, business and science. The documents contain a series of recommendations on how laws and framework conditions in the Blockchain and ICO field should be adapted in order to strengthen the Swiss Blockchain/ICO location in the best possible way.

The Blockchain Task Force concludes, among other things, that

  • for practical and economical reasons, the possibility of digital transfer of ownership of tokens should already be possible to date applying a broad interpretation of the existing law. Alternatively, a change in the law is proposed;
  • the current Anti-Money Laundering Act does not need to be amended. It is sufficient to consistently apply the existing law to the new technology;
  •  a so-called “sandbox” (an experimental space with lower regulatory requirements) for blockchain start-up companies should be created (similar to the existing Fintech sandbox);
  •  it is extremely important that Blockchain companies can open a bank account without further ado. This is currently only difficult to achieve;
  • new standards (so-called “best practice rules”) for the issuance of tokens and transactions on the blockchain are to be introduced. FINMA should define when tokens should be regarded as securities within the meaning of the Financial Market Infrastructure Act or as deposits within the meaning of the Swiss Banking Act;
  • general criteria for the term “token” should be established. With a so-called “Token Map” a group of criteria and terms shall be proposed, which can be used in connection with the design and evaluation of blockchain-based projects, which issue their own tokens.

The Blockchain Task Force also announced that it would continue its activities but change its name to Swiss Blockchain Institute. An ICO will be launched to finance future activities of the institute.

Further information at:

Starkung des Blockchain-Standorts Schweiz

Positionspapier zur rechtlichen Einordnung von ICOs

Contact Us

Guenther Dobrauz
Partner, Leader of PwC Legal Switzerland
Office: +41 58 792 14 97
Email: guenther.dobrauz@pwc.com

Tina Balzli
Director, PwC Legal Switzerland
office: +41 58 792 15 54
Email: tina.balzli@ch.pwc.com

Mark Schrackmann
Assistant Manager, PwC Legal Switzerland
Office: +41 58 792 25 60
Email: mark.schrackmann@ch.pwc.com

Orkan Sahin
Assistant Manager, PwC Legal Switzerland
Office: +41 58 792 19 94
Email: orkan.sahin@ch.pwc.com

QI and CRS Updates

IRS opens QI portal for the Responsible Officer Certification and published new FAQs

On 4 April 2018, the Internal Revenue Service (“IRS”) has opened the QI portal and published new FAQs regarding the upcoming QI Responsible Officer certification. A new section titled “Periodic Certification” has been added to the existing FAQs.

Please refer to the following link for access to the updated FAQs.

Additionally, the IRS has updated the QI User Guide and made it available on its website (see “Publication 5262”). You can find the updated QI User Guide here.

OECD news regarding CRS

On 5 April 2018, the Organisation for Economic Co-operation and Development (“OECD”) published an updated list of all activated CRS agreements on its website.

Please refer to the following link for access to the updated list.

There are now more than 2700 bilateral agreements in place.

Additionally, the OECD published an updated version of the CRS Implementation Handbook, which can be accessed under the following link.

The Implementation Handbook is a guidance for governments to refer to in terms of their implementation of CRS rules into their local legislation and guidance, as well as a practical overview of CRS for the financial sector and the wider public.

We will continue to keep you updated as we follow and analyze these updates over the next few days. In the meantime, we are happy to answer any of your QI- and CRS-related questions.

Contact

Bruno Hollenstein
Partner, Operational Tax
+41 58 792 43 72
bruno.hollenstein@ch.pwc.com

A primer on the regulation of the trading in cryptocurrencies and the asset management related to cryptocurrencies in Switzerland

Cryptocurrencies, which are based on distributed ledger technology, have gained importance in financial services in the recent past. This primer seeks to give an overview of the key obligations under Swiss regulatory laws related to:

  • Trading in cryptocurrencies
  •  Initial coin offerings (ICOs)
  • Entities trading in cryptocurrencies
  • Asset management related to cryptocurrencies
  • Anti-money laundering obligations

Trading in cryptocurrencies is increasingly subject to regulation on multiple levels, namely:

  • Trading
  •  ICOs
  • Entities trading in cryptocurrencies
  • Asset management related to cryptocurrencies

Payment tokens, exchange of cryptocurrencies into fiat money, custody wallets, banks, securities dealers and asset managers are generally subject to anti-money laundering requirements, such as registration, supervision and identification of counterparty requirements. Anti-money laundering obligations are the basic regulatory requirements that apply to most entities trading in cryptocurrency markets. Depending on their additional activities, they might require a licence as a bank, securities dealer (Swiss version of an investment firm), bilateral organised trading facility (OTF) or asset manager, or a combination of these licences. Switzerland is also planning to introduce a new licence category in the near future, called fintech-bank. Licences are required in the cases listed below.

  • Accepting client deposits, in particular when issuing OTC derivatives which are not securities, generally requires a banking licence. The banking licence is the highest regulated category of financial market participation. Cryptocurrencies and their associated private keys may be deposits under the Swiss Banking Act.
  • Trading in cryptocurrencies which are securities, either on behalf of clients or on one’s own account (if certain turnover thresholds are being exceeded), generally requires a securities dealer licence. The licensing requirements also apply to the entity’s public issuing of derivatives. Bilateral systematic internalisation of cryptocurrencies and related derivatives or financial instruments is subject to additional regulatory requirements under the Swiss Financial Market Infrastructure Act (FMIA).
  • Asset management activities related to Swiss and foreign collective investment schemes regarding cryptocurrencies and related financial instruments generally require a licence. The distribution of collective investment schemes and the representation of foreign collective investment schemes also require a licence. Individual portfolio management and advisory activities are, under the current regulatory regime, not subject to a licensing requirement (except for AML registration). However, this is likely to change under the new regulatory regime planned to enter into force soon.

Trading in cryptocurrencies that are derivatives may be subject to multiple obligations depending upon the status of the counterparties involved, such as reporting and risk mitigation (trade confirmation, portfolio reconciliation, portfolio compression, dispute resolution and valuation, as well as initial and variation margins).

Read Full Report

Contact Us

Martin Liebi
Director, PwC Legal Switzerland
Tel: +41 58 792 28 86
martin.liebi@ch.pwc.com

FATCA Certification: Extension of Deadline and Draft Certification Texts Published

On 16 March 2018, the Internal Revenue Service (“IRS”) published the FATCA Responsible Officer certification texts on its website (in draft form). Additionally, the IRS extended the deadline for the FATCA Responsible Officer certification. Please refer to the following link for access to the draft FATCA certification texts as well as the notice regarding the deadline extension.

The IRS also announced that the IRS’s FATCA Certification Portal (“IRS Portal”) will not be available until July 2018 (at the earliest). Based on the newly provided information, we understand that the IRS will grant FATCA Responsible Officers an extension of at least three months (as per the activation date of the IRS Portal) for the FATCA Certification. This means that the FATCA Certification deadline will be extended from 1 July 2018 to 1 October 2018 (assuming the IRS Portal is activated on 1 July 2018).

Furthermore, the IRS published different draft certifications texts for the various Financial Institution categories (e.g., Reporting Model II FFI, Local FFI, etc.). An initial review of the draft certification texts indicates no unexpected surprises in terms of the content or scope of the FATCA Certification.

As we continue to analyze the certification texts, we will actively post any new and relevant information. In the meantime, please feel free to contact us in case of any questions.

Contact

Bruno Hollenstein
Partner, Operational Tax
+41 58 792 43 72
bruno.hollenstein@ch.pwc.com

Melanie Taosuwan
+41 58 792 4249
melanie.taosuwan@ch.pwc.com

OECD Issues Model for Mandatory Disclosure of CRS Avoidance Schemes

On 9 March 2018, the Organisation for Economic Co-operation and Development (“OECD”) issued new model disclosure rules that require the mandatory disclosure of OECD Common Reporting Standard (“CRS”) avoidance schemes. The model will require lawyers, accountants, financial advisors, banks and other service providers to inform tax authorities of any schemes they put in place for their clients to avoid reporting under the CRS. Additionally, under the model, reporting of structures that hide beneficial owners of offshore assets, companies and trusts is required. The OECD also hopes to deter the design, marketing and use of these arrangements and schemes and bolster the overall integrity of the CRS.

The document issued by the OECD provides background information regarding the CRS anti-avoidance topic, includes text of the model itself, as well as a commentary to explain the model. As a next step, the model disclosure rules will be submitted to the G7 presidency in an effort to adopt a wider strategy of monitoring and acting upon market tendencies to avoid CRS reporting and hide assets offshore. Within the scope of the CRS anti-avoidance work, the OECD is also addressing cases of abuse of golden visas and other schemes used to circumvent CRS reporting.

Please refer to the link for access to the OECD’s new model disclosure rules.

Additionally, please refer to the link for access to the OECD’s accompanying FAQs.

Contact

Bruno Hollenstein
Partner, Operational Tax
+41 58 792 43 72
bruno.hollenstein@ch.pwc.com

EMIR II: The European Parliament’s (preliminary) answer to EMIR as we know it

EMIR II brings with it many simplifications for market participants, not just in the EU/EEA, but globally. The reporting duty being simplified will noticeably reduce the burden, particularly for non-financial counterparties.

Moreover, financial counterparties themselves can also look forward to benefits: the introduction of a small financial counterparty category will limit the scope of the clearing obligation, while intra-group transactions with non-financial counterparties will be fully exempt from the reporting obligation. The current exemption for pension schemes will be continued for at least another three years.

Only Securitisation Special Purpose Entities and Alternative Investment Funds registered under national law in the European Union are expected to be negatively impacted by EMIR II.

Read more

Contact Us

Guenther Dobrauz
Partner, Leader PwC Legal Services Switzerland
Office: +41 58 792 14 97 | Mobile: +41 79 894 58 73
Email: guenther.dobrauz@ch.pwc.com

Michael Taschner
Senior Manager | PwC Legal Services Switzerland
Office: +41 58 792 10 87 | Mobile: +41 79 775 95 53
Email: michael.taschner@ch.pwc.com

Alexandra G. Balmer
Consultant | PwC Legal Services Switzerland
Office: +41 58 792 14 24 | Mobile: +41 79 267 81 04
Email: alexandra.balmer@ch.pwc.com

Gregory Columbres
Assistant Consultant | PwC Legal Services Switzerland
Office: +41 58 792 18 41 | Mobile: +41 79 417 88 38
Email: gregory.columbres@ch.pwc.com

A primer on the regulation of FX trading and the asset management of FX in Switzerland

Trading in currencies and FX financial instruments is increasingly subject to regulation on multiple levels:

  • Trading
  • FX spot transactions
  • FX financial instruments transactions
  • Entities trading in currencies and FX financial instruments
  • Asset management related to currencies and FX financial instruments

Trading in FX is subject to the FX Global Code which is not a mandatory law, but industry best practice. Trading in FX derivatives is subject to multiple obligations depending upon the status of the counterparties involved, such as reporting and risk mitigation (trade confirmation, portfolio reconciliation, compression, dispute resolution and valuation, as well as initial and variation margins).

Currency trading, money exchange activities, trading in bank notes and coins, as well as banks, securities dealers, and asset managers are generally subject to anti-money laundering requirements, such as registration, supervision, and identification of counterparties requirements. Anti-money laundering obligations are the basic regulatory requirements that apply to most entities trading in the FX markets. Depending upon their additional activities, they might require a license as a bank, securities dealer, bilateral organised trading facility (OTF), or asset manager or a combination of these licenses.

  • Accepting client deposits in particular related to FX or issuing OTC derivatives which are not securities generally requires a banking license. The banking license is the highest regulated license category.
  • Trading in FX derivatives, which are securities, either on behalf of clients or on one’s own account (if certain turnover thresholds are being exceeded) generally requires a securities dealer license. The licensing requirements also apply to entities publicly issuing FX derivatives. Bilateral systematic internalisation of FX derivatives and FX financial instruments is subject to additional regulatory requirements under the Financial Market Infrastructure Act.
  • Asset management activities related to Swiss and foreign collective investment schemes regarding FX and related financial instruments generally require a license. The distribution of collective investment schemes to non-qualified investors of collective investment schemes as well as the representation of foreign collective investment schemes also require a license. Individual portfolio management and advisory activities are, under the current regulatory regime, not subject to a licensing requirement (except AML-registration). This will however likely change under the new regulatory regime planned to enter into force soon.

Read Full Report

Contact Us

Martin Liebi
Director
Tel: +41 58 792 28 86
martin.liebi@ch.pwc.com

IRS Announcements regarding QI Certifications

On 22 February 2018, the Internal Revenue Service (“IRS”) announced that the QI/WP/WT application and account management system will be open to accept QI/WP/WT certifications beginning in early April.

Additionally, the IRS announced extended deadlines for the certifications as follows:

  • For QIs that choose 2015 or 2016 for the periodic review, the IRS will permit an extension of the original deadline from 1 July 2018 to 1 September 2018
  • For QIs that qualify for a waiver from the periodic review, the IRS will permit an extension of the original deadline from 1 July 2018 to 1 September 2018
  • For QIs that choose 2017 for the periodic review, the IRS will permit an extension of the original deadline from 31 December 2018 to 1 March 2019

All QIs/WPs/WTs will receive an announcement on their message board that the QI/WP/WT account management system will open in early April.

FAQs are available on the IRS website to support users in managing the system.

Contact

Melanie Taosuwan
+41 58 792 4249
melanie.taosuwan@ch.pwc.com

OECD Releases New CRS Anti-Avoidance Consultation Document

On 19 February 2018, the Organisation for Economic Co-operation and Development (“OECD”) released a consultation document on the misuse of residence by investment schemes to circumvent the OECD Common Reporting Standard (“CRS”). As an increasing number of jurisdictions are offering so-called “residence by investment” (“RBI”) or “citizenship by investment” (“CBI”) schemes, the OECD is seeking public input to obtain further evidence on the misuse of such RBI/CBI schemes.

The OECD’s consultation document aims to:

  1. assess how RBI/CBI schemes are used to circumvent the CRS;
  2. identify the types of schemes that present a high risk of abuse;
  3. remind stakeholders of the importance of correctly applying relevant CRS due diligence procedures to aid in avoiding such abuse; and,
  4. explain the next steps the OECD plans to undertake to further address this issue.

The OECD will take public input into account in order to determine how to best proceed with the RBI/CBI schemes issue. Parties interested in providing input have until 19 March 2018 to email their comments to the OECD. All comments must be sent to CRS.Consultation@oecd.org and addressed to the International Co-operation and Tax Administration Division.

Please refer to the following link for access to the OECD’s consultation document.