Attention to new sanctions related to Russia

The U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) sanctions Russian oligarchs, officials and entities.

OFAC has designated seven Russian oligarchs and 12 companies they own or control, 17 senior Russian government officials and a state-owned Russian weapons trading company and its subsidiary, a Russian bank.

What does this regulation mean for U.S. persons?

U.S. persons are generally prohibited from dealings with designated individuals and entities subject to U.S. jurisdiction. This prohibition also applies to employees and board members of designated entities if they are subject to U.S. jurisdiction.

OFAC has issued General License 12, which authorises a time-limited maintenance or wind-down of operations, contracts or other agreements (e.g. authorising the transfer of shares) that were in effect prior to 6 April 2018. Furthermore, General License 13 authorises U.S. persons with shares in a designated entity or blocked entity (50% OFAC rule) to divest or transfer these shares to a non-U.S. person, or to facilitate the transfer by a non-U.S. person to another non-U.S. person of debt, equity or other holdings in the blocked entities listed in this General License.

What does this regulation mean for companies owned or controlled by designated individuals or entities?

Property and interests in property of entities of which 50% or more is directly or indirectly owned by one or more designated individual(s) or entity(ies) are considered as blocked regardless of whether such entities appear on the OFAC’s Specially Designated Nationals and Blocked Persons List (SDN List).

Such participations could lead to significant difficulties not only with U.S. persons and entities, but also with non-U.S. persons (if applicable under the specific regulation) and persons who are risk-averse in the fairly long-term. Furthermore, this scenario could also result in reputational damage.

Will foreign persons (non-U.S. persons) be subject to sanctions for doing business with designated individuals or entities?

Foreign persons (non-U.S. persons) could also be subject to sanctions for doing business with designated individuals, entities and blocked entities (50% OFAC rule) for knowingly facilitating significant transactions, including deceptive or structured transactions, for or on behalf of any person subject to U.S. sanctions with respect to the Russian Federation or their children, spouses, parents, or siblings.

Broad factors for “significant transaction” and “significant financial transaction” include the size, number and frequency of the transaction(s), the nature of the transaction(s) or the level of awareness of management and whether the transaction(s) are part of a pattern of conduct.

You can count on us

Would you like to ensure compliance with sanctions regulations, review or expand your existing sanctions compliance system, or do you have any specific questions about sanctions regulations? We will be happy to actively support you as your partner:

  • We can help you carry out health checks and ensure compliance with your obligations in accordance with the specific OFAC regulation on designated individuals, entities or blocked entities.
  • Furthermore, we can help you carry out health checks and ensure compliance with your obligations in accordance with local (e.g. SECO, UNO) and EU sanctions regulations in general, including a comprehensive report with clear guidance on the next steps you need to take.
  • We can provide you with a memorandum on specific questions with regard to your business model or project.
  • We can offer support with the practical implementation of an adequate compliance management system.
  • We can assist you with the development, improvement and implementation of your organisation, policies, guidelines, procedures, training and controls.

Contact us

Susanne Hofmann
Director
Leader Legal Compliance, PwC Switzerland
Direct: +41 58 792 17 12
susanne.hofmann@ch.pwc.com

Simeon Probst
Partner
Leader Customs & Trade, PwC Switzerland
Direct: +41 58 792 53 51
simeon.probst@ch.pwc.com

Gianfranco Mautone
Partner
Leader Forensic Services and Financial Crime, PwC Switzerland
Direct: +41 58 792 17 60
gianfranco.mautone@ch.pwc.com

Désirée Bysäth (Author)
Assistant Manager
Legal Compliance, PwC Switzerland
Direct: +41 58 792 40 03
desiree.bysaeth@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

Blockchain: Key challenges to get your solution GDPR compliant

What is the General Data Protection Regulation (GDPR) about?

The General Data Protection Regulation (GDPR) (EU) 2016/679 harmonises personal data protection law on the territory of the European Union (EU). It stipulates rules on data processing and on the transfer of personal data in and outside the EU. Coming into effect on 25 May 2018, it will replace the 1995 Data Protection Directive (Directive 95/46/EC). Non-compliance with the GDPR may lead under some circumstances to severe fines of up to 4% of worldwide annual turnover.

What are the key challenges the GDPR triggers for blockchain?

Depending on the blockchain-based activity the GDPR raises considerable legal concerns. Among the most relevant ones relate to the processing principles of data minimisation and storage limitation. Some key challenges relate specifically to blockchain features, such as:

    • Immutability of transactions
    • Replication
    • Encryption
    • Data controllers and data processors

Read the full article

 

Contacts

Dr. Guenther Dobrauz
Leader|PwC Legal Switzerland, Zurich
+41 58 792 14 97
guenther.dobrauz@ch.pwc.com

Susanne Hofmann
Director|PwC Legal Switzerland, Zurich
+ 41 58 792 17 12
susanne.hofmann@ch.pwc.com

Dr. Idir Laurent Khiar
Manager|PwC Legal Switzerland, Zurich
+41 58 792 17 51
idir.laurent.khiar@ch.pwc.com

Orkan Sahin
Assistant Manager|PwC Legal Switzerland, Zurich
+41 58 792 19 94
orkan.sahin@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

PwC’s 2018 Global Economic Crime and Fraud Survey: Should Swiss companies be worried?

PwC’s Global Economic Crime and Fraud Survey 2018 reveals that 49% of global and 39% of Swiss organisations experienced economic crime in the last 24 months.

Could this mean that the problem is diminishing? Or are Swiss organisations simply not aware they have already fallen victim to economic crime?

In this blog post we will be examining the true nature of the threat and exploring whether companies be taking smarter measures to combat economic crime.

Does an apparent decline in fraud reflect the true story?
Despite a number of recent high profile fraud cases globally, PwC’s Global Economic Crime Survey suggests that the problem isn’t proliferating in Switzerland. The percentage of Swiss organisations who have experienced fraud in the last two years has decreased from 41% in 2016 to 39% in 2018. This figure looks even more positive when compared with the global (49%) or western European (45%) results. But is the result really that good?

We believe it isn’t. The survey data reveals some disconcerting facts.

Bribery and corruption are increasingly on the radar. In 2018, 27% of the Swiss respondents reported that they had been asked to pay a bribe, up from 9% in 2016. One in five respondents (20%) believe that their firms lost an opportunity to a competitor who paid a bribe within the last 24 months, up from 11% in 2016. While this shows growing awareness of, and confidence in acknowledging bribery and corruption, it also suggests that companies have to become even more alert to the threat of the problem and its implications in terms of competitiveness.

Secondly, the mean direct loss attributable to each incident of fraud in Switzerland was almost CHF 10 million – more than five times the global figure. While this may be due in part to the size of the Swiss economy and the prominence of banking and financial services sector– a particularly attractive target for fraudsters – it demonstrates that this is not a trivial problem. The size of monetary damage is significant.

Fighting fraud blindfold, or with eyes wide open?
While the lower fraud level reported in Switzerland may be due to an effective legal framework and law enforcement system, it could also reflect a temptation for organisations to overestimate the effectiveness of their systems and controls. Only one in three (33%) Swiss respondents performed a general fraud risk assessment over the two-year survey period which is substantially less than respondents globally (54%). Against this backdrop there’s a considerable risk that economic crime will go unnoticed and unreported, especially if an organisation doesn’t have access to management reporting concerning fraud.

Fraudsters down but not out, and moving quickly with the times
Swiss respondents reported that asset misappropriation (51%) and cybercrime (44%) were the two most common types of fraud experienced by their organisation with the latter also being perceived as a significant threat in the future. In order to be adequately prepared, organisations need to keep track of changes in the overall fraud risk landscape and the fact that Swiss respondents recognise cybercrime as the most significant risk going forward is encouraging.

However, our survey – both globally and in Switzerland – suggests that there’s still a failure to recognise the true nature of the threat, especially with growing business and consumer digitisation, the increasing sophistication of attacks, and heightened data security expectations amongst stakeholders. As the latest digital technologies help fraudsters become more strategic in their goals and more sophisticated in their methods, companies urgently have to make cybersecurity – the mitigation of cybercrime – a boardroom priority.

Unlike other types of fraud, cybercrime is a means to commit other types of fraud rather than being a stand-alone offence. Three in ten Swiss respondents suffered disruption to their business processes after having been the victim of a cyber-attack. More than a quarter of Swiss respondents (28%) were a victim of extortion and more than a fifth (23%) reported that a cyber-attack was used as a conduit to commit asset misappropriation against their organisation.

Efforts have to be more intelligent and better coordinated
While the 2018 survey shows that Swiss firms are taking cybercrime seriously, it also suggests that they need to work harder to be in line with global standards. Best practice organisations have adopted a ‘three lines of defence’ model, dividing responsibilities between functions that own and manage risk, those that oversee or specialise in risk management and those that provide independent assurance. It’s important to ensure that each of these functions also adequately addresses cyber risks.

In reality, only 54% of Swiss respondents have an operational cybersecurity programme, 5% below the global average and 7% below the average for Western Europe. Overall the global survey reveals serious blind spots when it comes to recognising the specific risks of fraud and economic crime. The trick is to recognise these blind spots before any fraud incident takes place. While it’s encouraging that 92% of Swiss firms expect to either significantly increase (6%), increase (25%) or maintain (61%) the amount of funds used to combat fraud, the issue is more about how these funds are actually spent. Presently, the stumbling block is often a lack of coordination and a failure to see the big picture.

The areas of a business that investigate fraud, manage fraud risks and report to the board or regulators are often disjointed and siloed. If each department builds a programme based on their own perception of fraud, operational gaps will eventually arise. So it’s vital to ensure all stakeholders understand the big picture of fraud risk management and how their own function fits into it. For global companies, establishing a centralised fraud detection and investigation function is a very good starting point.

And for any organisation, we can suggest four golden rules of effective fraud prevention:

Instant takeaway: four steps to fight fraud

  • Recognise fraud when you see it
  • Take a dynamic approach
  • Harness technology
  • Invest in people, not just machines

Follow these rules of thumb and you’ve already increased your chances of navigating an increasingly complex economic crime landscape. If you want to find out more, check out PwC’s Global Economic Crime and Fraud Survey 2018, and the deep dive into the Swiss findings ((link)), or contact us for a more in-depth conversation about how to tackle fraud and economic crime.

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

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.

Implementing Interest Rate Risk in the Banking Book (IRRBB) in Switzerland

The Basel Committee on Banking Supervision (BCBS) finalised its Pillar 2 capital framework for Interest Rate Risk in the Banking Book (IRRBB) in April 2016. The new framework replaces its previous version from 2004 and sets out nine principles for banks and three principles for supervisors for the management and supervision of IRRBB. FINMA proposed in a consultation in Q4 2017 to adapt IRRBB in Switzerland effective 1 January 2019.

To read more about the FINMA implementation of IRRBB, the action points for banks and how PwC can help click on the following link:

Read more

Your contacts at PwC

Andrea Martin Schnoz
Director Assurance
andrea.schnoz@ch.pwc.com
Tel. +41 58 792 23 35

Dr Manuel Plattner
Director Advisory
manuel.plattner@ch.pwc.com
Tel. +41 58 792 24 44

Philip van Hövell
Senior Manager –
Data Analytics & Modelling
philip.van.hoevell@ch.pwc.com
Tel. +41 58 792 10 76

Dr Sebastian Gerigk
Senior Manager Advisory
sebastian.gerigk@ch.pwc.com
Tel. +41 58 792 29 46

A look back at the PMI event: Creating high-performing teams for your projects, February 8

Lively exchange, interesting topics and inspiring conversations at the event held by the Project Management Institute (PMI) and PwC Switzerland

Human capital research has given us some interesting insights over the last 30 years. Did you know, for example, that undermined motivation probably has a larger effect on productivity and quality than any other factor? And that after motivation, probably the largest influencer of productivity is the individual capabilities of members of a team or the working relationships among them? These and other facts have been discussed yesterday at the event on the subject “Creating high-performing teams for your projects”.

The interactive presentation has drawn on experience with building high-performing teams for IT projects, nationally and internationally. Attendees got insights into how to build teams that make the grade, what roles need to be included, and what factors influence behaviour and motivation.

We would like to say thank you to all attendees, colleagues, PMI and especially to our speaker Maarten Broekhuizen, senior manager in the Transformation Assurance division at PwC Netherlands, and would be delighted to have the pleasure of your company again soon.

About the next event: Artificial Intelligence & Project Management: Beyond human imagination!

Around 200 years ago the industrial revolution changed society for good. Today another revolution is under way, with potentially even farther-reaching consequences.

Artificial intelligence (AI) in industry, experts are predicting, will change everything about the way we produce, manufacture and deliver. Cognitive computing, machine learning, natural language processing – different terms have emerged as the technology has progressed in recent years. What they all encapsulate is the idea that machines could one day be taught to learn how to adapt by themselves, rather than having to be spoon-fed every instruction for every eventuality. Now, according to many, that day has arrived. AI will change the world.

Date: Thursday, April 12, 2018 from 6:00 PM to 9:30 PM (CEST)
Location: Geneva, Switzerland.

Registration

Contact

Marc Lahmann
Director and Leader Transformation Assurance
+41 58 792 27 99
marc.lahmann@ch.pwc.com

Manuel Probst
Senior Manager Transformation Assurance
+41 58 792 27 62
manuel.probst@ch.pwc.com

 

EU and the OECD considering TRACE / withholding tax simplification

On 30 January 2018, the European Commission held a public session to discuss the code of conduct issued by the Commission in late 2017 regarding increasing the efficiency of withholding tax (“WHT”) procedures. The code of conduct contains a list of measures for E.U. Member States to consider in terms of simplifying WHT procedures as regarding cross border income such as dividends, interest, and royalties. The code is a non-binding document which allows for voluntary commitment by E.U. Member States.

The measures considered includes, inter alia, (1) increased digitalization of WHT procedures, (2) provisions of refunds in a short period, and (3) relief at source. The tax relief at source suggestion includes the use of “authorized information agents and withholding agents” to facilitate the verification of entitlement to treaty relief, provision of pooled withholding tax rate information, and reporting of relevant information.

Such a tax relief at source solution resembles the OECD’s Treaty Relief and Compliance Enhancement (“TRACE”) project which started in 2009. TRACE envisages the use of Authorised Intermediaries to facilitate a more efficient and simpler application of treaty relief on cross border investments in a similar manner to the U.S. Qualified Intermediary regime. Although TRACE has not been implemented in any country as of yet, we understand that it may be reactivated soon especially given the work done at European Commission level in terms of the WHT topic.

Please refer to the following link for access to the European Commission Code of Conduct.

Contact

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