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Edited by Fabiana Di Porto and Rupprecht Podszun

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Xavier Oberson

Chapter 15 is devoted to the rights of the taxpayer. This topic, often left on the side until recently, is gaining more attention. The legal position of the taxpayer during the various phases of the process of information exchange is therefore analyzed. The chapter distinguishes between two levels of rights that may be relevant in this context. First, substantive rights, namely constitutional rights, rights of privacy or data protection rules, are described as well as their potential impact on the exchange of information process. Data protection, notably in the EU, have gained in importance, following some important cases rendered at the EUCJ level and the introduction of EU rules, such as the General Data Protection Regulation (GDPR), which will enter into force on 28 May 2018 and should also have an impact on tax information exchange. Second, procedural rights, such as the right to be heard, the right to participate to the exchange of information process or the right to appeal are also analyzed. Recent case law of the EUCJ as well as the ECHR are taken into account.

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Xavier Oberson

Chapter 7 is devoted to the Multilateral Convention on Administrative Assistance (MCAA), which was designed as a model by the Council of Europe and the OECD. Opened to signature in 1988, it then entered into force on 1995. It was not until after the amendments were adopted in 2010, that the convention started to become one of the leading instruments in the fight against tax evasion and avoidance. Indeed, following that date, the convention became aligned to the global standard, and its signature was opened to non-OECD countries. This chapter will, therefore, describe the various forms of exchanges of information, notably upon request, spontaneous and automatic, provided in this convention.

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Xavier Oberson

Chapter 4 describes a practical case, which gave rise to many delicate issues and legal controversies, namely administrative assistance and exchange of information between the United States and Switzerland, as a consequence of the bank secrecy crisis, which started in 2008, and ended up around 2016 with the programme of the United States Department of Justice designed for Swiss banks.

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Antonio Morelli

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Xavier Oberson

Chapter 9 shows how Switzerland has tried to propose an alternative model to the system of automatic exchange, in the form of the so-called ‘Rubik agreements’. These agreements were adopted with Austria and the United Kingdom, between 2012 and 2017. They favoured a system of a definitive withholding tax on income from Swiss paying agents, at a rate roughly corresponding to the applicable rate of the State of residence of the taxpayer. As of January 2017, these agreements have been repealed and replaced by a global bilateral agreement between Switzerland and the EU on the introduction of the OECD standard of automatic exchange of information.

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Xavier Oberson

Chapter 13 describes the various solutions that states have tried to implement in order to solve the past, i.e. to convince recalcitrant taxpayers to bring back undeclared money into the system. Solutions such as tax amnesties, the US DOJ programme for Swiss banks, the Liechtenstein disclosure facility system, or the Swiss Rubik agreements are compared.

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Edited by Rafael Leal-Arcas

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Xavier Oberson

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Edited by Rafael Leal-Arcas