From martin@m-win.ch, +41 (52) 269 21 11
Due to banking secrecy ( Article 47 of the Bank Act ), banks only pass on information to a defined group of people. Various legitimately interested parties are not automatically included. For example, beneficial owners, heirs and creditors may have a legitimate interest in bank information about a bank customer (their trustee, testator or debtor). It is very difficult to obtain this information if suitable precautions have not been taken.
Anyone who transfers assets to third parties but does not want to let them go completely can do so by means of trust and similar arrangements, foundations, conditional or stipulating transactions of all kinds and other arrangements available under local and foreign legal systems. The motives can be fair or unfair, the arrangements legal or illegal. The legal consequences are often difficult to understand, uncertain and vary in different legal areas and systems. There are therefore always certain risks involved with such arrangements. Here we are talking about the risk of being cut off from the supposed possibility of control and influence because the assets are held by a Swiss bank and the bank only provides information to the legal and not the beneficial owner.
The concept of the "beneficial owner" has also become established in our country from Anglo-Saxon law and our tax and money laundering law. Banks have been identifying and registering this person for decades, initially voluntarily (since 1977 due to the VSB; currently VSB 20) and now legally required ( Articles 4 and 5 of the GwG ).
This problem is addressed in the dissertation "The possibilities of the beneficial owner to obtain bank information" (Martina Andrea Reber, from the series Swiss writings on capital market law, Schulthess Verlag, Zurich-Geneva, 2024). The conclusion is sobering from the point of view of the beneficial owner in need of information: without the consent of the legally entitled person (eg dishonest or deceased), the information can usually only be obtained through legal proceedings that are financially and time-consuming and involve further risks.
The same problem applies to people who claim to be heirs but cannot (yet) prove it. For example, their inheritance was taken away from them by a forged will, their status is disputed, or the authorities in the place where the deceased lived are too slow or refuse to produce the necessary documents. In such cases, there is a very real risk that those who appear to be formally entitled will take the funds away. Legal remedies can of course only be taken if there is any information at all about whether and where assets are located. The same applies to creditors, for example, who are fobbed off with loss certificates, even though the debtors are directly or indirectly entitled to bank deposits.
So if obtaining information in such situations is very difficult or even hopeless, what can be done to prepare for it?
The answer is easiest in situations that you create yourself, ie those described in the first section. By taking appropriate contractual or organizational measures, it will be possible in most situations to minimize the risk of lack of information.
Heirs and creditors have it more difficult. It is crucial to have complete documentation of relevant processes from the outset so that the necessary evidence can be presented to the bank and the courts in a secure and cost-effective manner. Early intervention when there are signs that the inheritance or claim could be at risk also helps. Often you can then negotiate rights or obtain information that would otherwise be denied to you later.
What is also unsatisfactory about the situation is that foreign tax authorities in comparable situations can now usually obtain information much more easily, and it is even sent to them unsolicited. This also applies to "controlling persons", ie non-customers from the bank's perspective, about whom private claimants, as explained above, hardly receive any information (see section 4.3 of the " Guidelines for the automatic exchange of information on financial accounts - Common Reporting Standards ").
If you have any questions or need support, please feel free to contact us.
I am interested (email to sekretariat@m-win.ch; we will get in touch)
Note: This article was published on our blog by the independent law firm « Martin Rechtsanwälte GmbH ».
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